Jan. 19, 2017
AB 2159: Immigrationstatus in civil actions
Amends Evidence Code Section 351.2 to preclude admission or discovery of evidence regarding a person's immigration status in a civil action for personal injury or wrongful death.
Brian S. Kabateck
Founding and Managing Partner, Kabateck LLP
Consumer rights
633 W. Fifth Street Suite 3200
Los Angeles , CA 90071
Phone: 213-217-5000
Email: bsk@kbklawyers.com
Brian represents plaintiffs in personal injury, mass torts litigation, class actions, insurance bad faith, insurance litigation and commercial contingency litigation. He is a former president of Consumer Attorneys of California.
Shant A. Karnikian
Partner and Trial Attorney, Kabateck LLP
Phone: (213) 217-5000
Email: sk@kbklawyers.com
Loyola Law School
Shant A. Karnikian is a partner and trial attorney with Kabateck LLP. His practice focuses on insurance bad faith, property damage cases, catastrophic personal injury, and consumer class actions.
The passage of Assembly Bill 2159 fortuitously comes at the right time. The legislation passed before the change in the current political climate in Washington, where the rights afforded to undocumented immigrants are becoming increasingly threatened.
In August, Gov. Jerry Brown signed into law AB 2159, which amends Evidence Code Section 351.2 to preclude admission or discovery of evidence regarding a person's immigration status in a civil action for personal injury or wrongful death. This amendment effectively overturns a long-standing California Court of Appeal decision, which allowed damages to be reduced to what an injured undocumented individual would have earned in their native country. The bill, authored by Assemblywoman Lorena Gonzalez, D-San Diego, and sponsored by the Consumer Attorneys of California, ensures that an injured person in California receives fair and just compensation for future income loss and future medical costs regardless of their immigration status.
California is no stranger to issues surrounding the rights of its undocumented residents. In recent years, the California Legislature has passed various laws that provide protections to its undocumented residents. Undocumented persons can obtain drivers licenses, qualify for in-state tuition and obtain professional licenses, including the license to practice law. Additionally, courts have held that a person's immigration status is irrelevant to the issue of liability. Clement v. State, 40 Cal. 3d 202 (1986).
Despite state lawmakers' commitment to protecting the rights of undocumented residents, these protections were undermined by a 30-year-old case, Rodriguez v. Kline, 186 Cal. App. 3d 1147 (1986). Rodriguez held that a plaintiff whose immigration status puts them at risk of deportation is not entitled to lost future wages based on California wages, whether or not that person is actually deported. As a result, lost future earnings damages are instead calculated in the wage rate of their country of origin. This harsh rule applied even if the injured individual was brought to California as a child, paid state and federal taxes for decades, and had never been subject to deportation. Rodriguez was also often used by defendants to limit the value of an injured immigrant's future medical care, even though that future medical care would be in the U.S., not their country of origin.
Defendants often raised the immigration status of undocumented plaintiffs as a strategy to limit the damages sought by an innocent injured Californian. This would not only reduce a plaintiff's damages, but would also serve as a way for defendants to cast the plaintiff in a negative light. By codifying the inadmissibility of immigration status in personal injury and wrongful death actions, AB 2159 ensures fair and just compensation for every Californian, regardless of their immigration status.
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