Immigration status: off limits come January

In August, Gov. Jerry Brown approved Assembly Bill 2159 by Assemblywoman Lorena Gonzalez, D-San Diego, which limits the use of an individual's immigration status in certain civil litigation. It is a short bill with potentially significant policy implications. AB 2159 adds California Evidence Code Section 351.2

Under existing law, all relevant evidence is admissible in a civil action, with specified exceptions. Current law also authorizes a court, in its discretion, to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

This bill was intended to address an earlier appellate court decision, Rodriguez v. Kline, 186 Cal. App. 3d 1146 (1986), that said 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.

Under AB 2159, in civil actions for personal injury or wrongful death, evidence of a person's immigration status is not admissible and discovery into a person's immigration status is not permitted. In addition, AB 2159 provides that these restrictions do not affect the standards of relevance, admissibility or discovery under other areas covered by Civil Code Section 3339, Government Code Section 7285, Health and Safety Code Section 24000 and Labor Code Section 1171.5.

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.

Last year, AB 560 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 (found in Civil Code Section 3339.5) 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.

According to Gonzalez, the author of AB 2159, "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." She argued, "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."

The proponents of AB 2159 claimed 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.

According to the Assembly policy committee's bill analysis, "The Committee notes that under this bill, neither 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 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."

AB 2159 was sponsored by the Consumer Attorneys of California and the Mexican American Legal Defense and Educational Fund. The new law takes effect Jan. 1, 2017.