BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2159 (Gonzalez and Bonta)
Version: March 31, 2016
Hearing Date: June 14, 2016
Fiscal: No
Urgency: No
RD
SUBJECT
Evidence: immigration status
DESCRIPTION
This bill would provide 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, except as
specified. This bill would provide that it does not affect the
standards of relevance, admissibility, or discovery under
existing law, which recognize that such inquiries can be allowed
where the person seeking to make the inquiry has shown by clear
and convincing evidence that the inquiry is necessary in order
to comply with federal immigration law.
BACKGROUND
In 2002, the United States Supreme Court, in Hoffman Plastic
Compounds Inc. v. NLRB (2002) 535 U.S. 137, held that the
National Labor Relations Board (NLRB) is precluded from awarding
backpay to undocumented workers because an award to these
specific workers would be beyond the bounds of NLRB's remedial
discretion and run counter to the federal Immigration Reform and
Control Act of 1986 (IRCA). Even though the workers might be
victims of unfair labor practices, the workers were never
legally authorized to work in the United States, and as a
result, the Court held that awarding backpay to undocumented
immigrants would "unduly trench upon explicit statutory
prohibitions critical to federal immigration policy," as
expressed in IRCA and "would encourage the successful evasion of
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apprehension by immigration authorities, condone prior
violations of the immigration laws, and encourage future
violations." (Id. at 151, noting at 152 that NLRB's "lack of
authority to award backpay does not mean that the employer gets
off scot-free. The Board here has already imposed other
significant sanctions against Hoffman - sanctions Hoffman does
not challenge.")
In response to Hoffman, this Legislature enacted an urgency
measure, SB 1818 (Romero, Ch. 1071, Stats. 2002) to limit the
potential effects of that decision on this state's labor and
civil rights laws. The bill codified substantially similar
legislative findings and declarations throughout the Civil Code,
the Government Code, the Labor Code, and the Health and Safety
Code relative to enforcement actions relating to the rights of
immigrants. For example, the following findings and
declarations were codified in Section 3339 of the Civil Code:
(1) 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; (2) 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 no inquiry shall be permitted into a person's
immigration status except when necessary to comply with federal
immigration law; and (3) the bill's provisions are declaratory
of existing law.
Additionally, last year, AB 560 (Gomez, Ch. 151, Stats. 2015)
codified that the immigration status of children is irrelevant
to issues of liability or remedy and is generally inadmissible
for purposes of discovery, except as specified. The bill
exempted employment-related prospective injunctive relief that
would directly violate federal law and also allowed for
discovery 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. (See Civ. Code Sec. 3339.5.)
This bill, co-sponsored by the Consumer Attorneys of California
and the Mexican American Legal Defense and Educational Fund,
would now generally provide that evidence of a person's
immigration status shall not be admitted into evidence, nor
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shall discovery into a person's immigration status be permitted,
in a civil action for personal injury or wrongful death.
CHANGES TO EXISTING LAW
Existing law provides that, except as otherwise provided by
statute, all relevant evidence is admissible. (Evid. Code Sec.
351.) Existing law, however, authorizes a court, in its
discretion, to exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time, or (b) create
substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury. (Evid. Code Sec. 352.)
Existing law provides that the Legislature finds and declares
the following:
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.
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 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.
These provisions are declaratory of existing law.
The provisions are severable. If any provision of the above
provisions or their application is held invalid, that
invalidity is prohibited from affecting other provisions or
applications that can be given effect without the invalid
provision or application. (Civ. Code Sec. 3339; see also
similar provisions at Gov. Code Sec. 7285, Health & Saf. Code
Sec. 24000, Lab. Code Sec. 1171.5.)
Existing law 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. Existing law further 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
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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. (Civ. Code
3339.5.)
Existing case law provides that an individual injured in the
United States who is subject to deportation is not entitled to
be compensated based upon his or her projected earning capacity
in the U.S., but rather may only 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, 1148-1149.)
This bill would add to the Evidence Code 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.
This bill would provide that this added prohibition against the
admissibility of, or discovery into, a person's immigration
status does not affect the standards of relevance,
admissibility, or discovery prescribed by the Civil, Government,
Health and Safety, and Labor Codes, above, as specified.
COMMENT
1. Stated need for the bill
According to the author,
Under Rodriguez v Kline (1986) 186 Cal.App.3d 1147,
Californians are at a disadvantage because their immigration
status is used against them during the process of determining
payment of damages solely related to future income loss.
Moreover, the precedent set by the case is being unjustly
applied to cases involving the recovery of future medical
costs.
The California Legislature has clearly indicated the
importance of protecting the rights of undocumented people not
only in the employment setting, but in all other respects. The
state's Labor Code, Civil Code, and Government Codes all
include language expressing protections to all individuals
regardless of immigration status.
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However, greater protections are needed for individuals
seeking recovery of fair compensation for their injuries
through our civil justice system. Assembly Bill 2159 will
ensure an injured person in [California] receives fair and
just compensation for future income loss and future medical
cost regardless of their immigration status.
Co-sponsor, Consumer Attorneys of California adds that "[o]ver
the past 20 years, this Legislature has granted undocumented
Californians the right to obtain drivers licenses, qualify for
in-state tuition, and obtain law and other professional
licenses. They are also expressly protected by California's
labor laws. Further, it is longstanding law that an
undocumented worker can receive workers' compensation without
any inquiry into immigration status. Despite these advances,
many undocumented individuals face efforts to limit their
ability to recover money to support their families and seek
adequate medical care when they are injured and unable to work.
[ . . . ] This bill would simply state that immigration status
is also irrelevant for adults pursuing a personal injury or
wrongful death action. [ . . . ]
In support of the bill, PolicyLink writes that:
While state lawmakers have approved many protections for
undocumented immigrants, those protections are substantially
undermined by one nearly 30-year-old case, Rodriguez v. Kline,
186 Cal.App.3d 1147 (1986). [ . . . ]
Besides reducing recovery for lost future earnings, evidence
regarding a plaintiff's immigration status can cause other
harms. Recently, Rodriguez has been used in some lawsuits to
lower the projected cost of an injured immigrant's future
medical care, thereby decreasing the amount of compensation
plaintiffs in those cases could receive for future medical
expenses. Perhaps more alarmingly, calling a person's
immigration status into question may prevent recovery
altogether. Once an individual's legal status as an immigrant
is raised, he or she is faced with a difficult choice: either
forego recovery or continue with the case and risk
deportation. Unsurprisingly, many may choose the former.
An undocumented plaintiff should not be forced to abandon a
legitimate civil action or receive less compensation due to
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his or her immigration status. This sends a message that our
courts attach less value to the pain and suffering of
undocumented Californians, even though they contribute greatly
to the economic and cultural fabric of the state and, thus,
deserve equal and fair treatment in the courts.
2. Existing law on admissibility of immigration status
Generally, as a matter of law, the immigration status of a
personal injury plaintiff is inadmissible as evidence for most
purposes. On the other hand, when the plaintiff raises certain
issues, immigration status may become relevant and thereby
admissible. Accordingly, the courts have recognized an
exception to this rule of inadmissibility where the plaintiff
seeks future earnings damages, because those future earnings are
dependent upon whether or not the individual would likely be
subject to deportation under federal law. The rule was first
articulated by a California Court of Appeal in Rodriguez v.
Kline (1986) 186 Cal.App.3d 1145, a case where an appeal was
taken from a personal injury award of $99,000 arising out of a
traffic accident and the court was asked to decide whether an
undocumented individual is entitled to be compensated for his
personal injuries based upon his projected earning capacity in
(1) the United States, or (2) the country of his lawful
citizenship.
The court began by noting that the plaintiff in that case (the
respondent) candidly admitted he was undocumented, writing that
"[a]s a consequence, respondent's status unquestionably bore
upon the amount of his anticipated future earnings. That is to
say, if respondent were to return, voluntarily or involuntarily
[pursuant to federal law making such an individual subject to
deportation], 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.) Even still, the Court recognized
the potential prejudice that such evidence could pose to the
plaintiff, writing that this could be remedied "by treating any
question regarding a plaintiff's citizenship or lawful place of
residence as one of law, to be decided exclusively by the trial
court outside the presence of the jury. Resolution of this
question is, of course, prerequisite to any ruling upon the
admissibility of evidence regarding future earnings." (Id.) As
held in Rodriguez:
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[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.
If the court's decision following this hearing is in the
plaintiff's favor, then all evidence relating to his alienage
shall be excluded and his projected earning capacity may be
computed upon the basis of his past and projected future
income in the United States. Should the defendant prevail,
then evidence of the plaintiff's future earnings must be
limited to those he could anticipate receiving in his country
of lawful citizenship. Of course, in such an instance since
the plaintiff's status ordinarily would not be relevant to a
determination of liability, he would be entitled to a limiting
instruction to that effect. (Id. at 1149, citing Alonso v.
State of California (1975) 50 Cal.App.3d 242.)
More recently, in Hernandez v. Paicius (2003) 109 Cal.App.4th
452 (disapproved on another ground in People v. Freeman (2010)
47 Cal.4th 993, 1007), a California Court of Appeal, relying in
part upon the public policy reflected in the Civil Code,
Government Code and Labor Code regarding the irrelevance of
immigration status in the enforcement of state labor,
employment, civil rights, and employee housing rights, held:
[The trial] court absolutely should have granted plaintiff's
motion to exclude reference to his residency status. Only
relevant evidence is admissible. (Evid. Code [Sec.] 350.)
The court lacks discretion to admit irrelevant evidence.
[Citations and footnote omitted.] The evidence was irrelevant
to the issue of liability under Rodriguez v. Kline . . . a
decision plaintiff cited to the court below. Plaintiff was
not claiming loss of future earnings. Thus, his potential for
making money did not matter. In fact, plaintiff was not
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claiming loss of any earnings, past or future. [Footnote
omitted, emphasis in original.] Not only was the evidence
entirely irrelevant; it was, as the court illustrated only too
early in its comments, highly inflammatory. As the Rodriguez
court observed, '(E)vidence relating to citizenship and
liability to deportation almost surely would be prejudicial to
the party whose status was in question.' (Rodriguez, at p.
1148)." (Id. at 460.)
3. Post-Rodriguez use of immigration status
While it appears that courts can disallow the introduction of a
person's immigration status under existing rules of evidence and
in specific cases governed under statutes enacted by SB 1818
(Romero, Ch. 1071, Stats. 2002) in the Civil, Government, Labor
and Health and Safety Codes, the use of a person's immigration
status continues to be an issue in civil actions, whereby
defendant's allegedly inquire into and use a person's
undocumented status as a method to limit a victim's recovery,
including future medical care damages. As such, this bill seeks
to expressly limit the use of a person's immigration status to
reduce the recovery of damages and to prejudice the finder of
fact against an injured party in personal injury and wrongful
death cases.
The author argues that not only is the nearly 30-year old
holding of the 1986 Rodriguez case "not up to today's standards
in regards to extensive protections for undocumented
immigrants," but that in recent years, third party defendants
have "mounted new efforts to extend the holding in Rodriquez to
similarly limit the recovery of future medical care damages."
The Mexican American Legal Defense and Educational Fund
(MALDEF), co-sponsor of this bill, adds "Rodriguez allows
damages to be reduced to what the individual would have earned
in his native country despite the fact that the individual lives
in California. Many of these injured people were brought to
California as children, have paid state and federal taxes for
decades, and have never been subject to deportation." Moreover,
they argue, defendants use Rodriguez selectively to attack and
undermine damage claims by people whose countries of origin are
primarily in Asia and Latin America, where the value of damages,
such as future income loss, is lower in those foreign nations
compared to the United States.
Co-sponsor Consumer Attorneys of California (CAOC) provides a
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specific example of the impact of the Rodriguez decision,
wherein "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." [Emphasis in original.] The sponsors provide
several other examples of how a person's immigration status has
been used to limit recovery of damages in California, despite
the public policies reflected in the AB 1818 statutes, largely
prohibiting the use of immigration status for similar purposes:
Three years after he came to the U.S. from Mexico, Javier, in
his early 30s, was struck by a big rig while walking his
bicycle across a Southern California intersection. He suffered
a brain injury and is unable to continue his $10 an hour work
as a private construction laborer. His future medical expenses
are estimated to be more than $3 million. If he were
compensated based on what his medical care would cost there,
he would not be able to pay for medical necessities 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.
By enacting this bill, the author seeks to "ensure fair and just
compensation for every Californian, regardless of his/her
immigration status," while at the same time "preserv[ing] the
integrity of the recovery process for an individual seeking
compensation for future income loss or future medical costs."
The Consumer Federation of California similarly writes in
support, describing that:
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Once immigration status is raised, a person, injured through
no fault of their own, is faced with either forgoing recovery
for his injuries, or continuing with his case in fear of
deportation. Immigration status is strategically applied only
when the undocumented person is from a country whose wages are
lower than the U.S. For example, 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, not
U.S. wages. However, the defense will not argue that
immigration status is relevant when the injured person is from
Sweden because her wages would be greater there. This allows
defendants to undercut the value of an injured immigrant's
future medical care, even though that future medical care will
be in the U.S., not their country of origin.
An injured individual should not have his or her recovery
limited because of immigration status, or ever be required to
have their immigration status discussed or debated in court.
This sends the wrong message to an intentional or
unintentional tortfeasor that some human lives are worth less
than others. [Emphasis in original.]
Arguably, allowing the introduction of a victim's immigration
status specifically to limit the damages owed to a victim
creates a de facto immunity for tortfeasors, whereby a victim is
denied redress for his or her injuries, not because of any
failure to prove an element of tort liability (e.g. duty,
breach, causation, damages), but, rather, by operation of a law
that effectively shields the tortfeasor from damages that he or
she would otherwise be legally obligated to pay out under any
other circumstances. Furthermore, staff notes that in the 30
years since the passing of Rodriguez, California has taken
significant steps toward the inclusion and integration of
undocumented individuals, such as by passing legislation
allowing the State Bar to admit an applicant who is undocumented
as an attorney at law upon certification by the State Bar
examining committee that the applicant has fulfilled the
requirements for admission to practice law. (See AB 1024
(Gonzalez, Ch. 573, Stats. 2013).) Other legislation, such as
SB 1159 (Lara, Ch. 752, Stats. 2014) have also prohibited
licensing boards from denying licensure to an applicant based on
his or her citizenship or immigration status. Thus, allowing
immigration status to reduce future damages appears to be
contrary to such public policy efforts to remove barriers for
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undocumented immigrants to improve their quality of life and to
contribute to California's economy.
4. Bill limits discovery and admissibility of immigration
status in personal injury or wrongful death cases
As noted above, existing law codifies various legislative
findings in the Civil, Labor, Government, and Health and Safety
Codes, that are intended to protect immigrants from the very
issues central to this bill. (See Comment 3, above.) In the
Civil Code, for example, existing law states 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 that 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 this inquiry is necessary in order to
comply with federal immigration law. (See Civ. Code Sec.
3339(b).) Additionally, as a result of legislation approved
last year (AB 560 (Gomez, Ch. 151, Stats. 2015)), California law
also expressly provides for similar prohibitions against the use
of a child's immigration status in most cases. Specifically,
Section 3339.5 of the Civil Code 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; and further prohibits discovery or
other inquiry in a civil action or proceeding relating to a
minor child's immigration status unless 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.
CAOC writes that while existing law specifies a number of
situations where immigration status is not to be considered, "it
does not specifically address protections for wrongful death or
personal injury matters. 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 income loss. However,
under current case law, this is happening frequently because
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defendants are permitted to inquire into a person's immigration
status when an undocumented individual, injured by no fault of
his own, brings a wrongful death or personal injury action to
recover for his injuries. The undocumented person's claim is
devalued solely because of his immigration status, contrary to
the long standing policy of this state."
Accordingly, this bill would now expressly render a person's
immigration status generally inadmissible and undiscoverable in
any civil action for personal injury or wrongful death. At the
same time, however, this bill would expressly provide that it
does not affect the standards of relevance, admissibility, or
discovery under some of the existing laws referenced above,
which recognize that such inquiries can be made where the person
seeking to make the inquiry has shown by clear and convincing
evidence that the inquiry is necessary in order to comply with
federal immigration law. Stated another way, while the bill
would render a person's immigration status generally
inadmissible and not subject to discovery in a personal injury
or wrongful death case, it would seemingly still allow discovery
or other inquiry in a civil action or proceeding relating to a
person's immigration status 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. In doing so, this bill would appear to be consistent with
the public policy expressed in the statutes referenced above and
the general rule, discussed in Comment 2, above, against the
admissibility of immigration status evidence, while also
avoiding having any effect on the relief available to a
plaintiff in the employment law context that would directly
violate federal law. (Indeed, the sponsors write that this bill
does not apply in the employment law context.)
The sponsors, as well as many of the civil rights and
immigration groups writing in support of this bill, argue that
"[a]n undocumented injured individual should not have his or her
recovery limited because of immigration status or ever be
required to have his or her status discussed or debated in
court. 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 the Golden State and it is unconscionable to
allow for some lives to be worth less than others."
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Support : American Civil Liberties Union; Asian Americans
Advancing Justice- California; California Catholic Conference;
California Conference Board of the Amalgamated Transit Union;
California Conference of Machinists; California Immigrant Policy
Center; California Teamsters Public Affairs Council; City of Los
Angeles Mayor, Eric Garcetti; Coalition for Humane Immigrant
Rights of Los Angeles; Congress of California Seniors; Consumer
Federation of California; Engineer & Scientists of CA, Local 20,
IFPTE Local 20; AFL-CIO; Equality California; International
Longshore and Warehouse Union; Mexican American Bar Association
of Los Angeles County; National Association of Social Workers,
California Chapter; Our Family Coalition; PolicyLink;
Professional & Technical Engineers, IFPTE Local 21, AFL-CIO;
UNITE-HERE, AFL-CIO; Southern California Chapter of the American
Immigration Lawyers Association; UNITE HERE Local 30; Utilities
Workers Union of America, Local 132, AFL-CIO
Opposition : None Known
HISTORY
Source : Consumer Attorneys of California; Mexican American
Legal Defense and Educational Fund
Related Pending Legislation : None Known
Prior Legislation :
AB 560 (Gomez, Ch. 151, Stats. 2015) See Background. This bill
further stated that its provisions are declaratory of existing
law and are not intended to imply that adults are not likewise
protected by existing law in the same circumstances.
SB 1818 (Romero, Ch. 1071, Stats. 2002) See Background.
Prior Vote :
Assembly Floor (Ayes 53, Noes 20)
Assembly Judiciary Committee (Ayes 8, Noes 1)
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