Thursday, August 18, 2016
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Brown Signs Bill Barring Immigration Status Evidence
By KENNETH OFGANG, Staff Writer
Gov. Jerry Brown yesterday signed into law a bill that will bar the admissibility or discovery of evidence of immigration status in personal injury and wrongful death actions.
AB 2159 by Assemblymember Lorena Gonzalez, D-San Diego, was one of 23 bills Brown signed yesterday, according to a press release.
The legislation will be effective Jan. 1. Supporters, including the Mexican American Legal Defense and Educational Fund and Consumer Attorneys of California, said it will abrogate Rodriguez v. Kline (1986) 186 Cal.App.3d 1145.
Under Rodriguez, a defendant can move before trial for leave to present evidence that a plaintiff is in the country illegally. If the judge then determines that the plaintiff is “subject to deportation,” and has not taken steps to ensure that he or she will be able to work legally in the future, the defendant can offer evidence of alienage in order to limit the plaintiff’s recovery for future wage loss to what he or would have been able to earn in his or her native country.
CAOC Comments
In a release yesterday, CAOC said the case “has been cited in numerous personal injury cases to drastically undervalue the compensation for catastrophically-injured undocumented persons,” even where it was clear they were under no threat of deportation. Some defendants argued that the decision should also apply to claims for future medical expenses, CAOC said.
“This bill corrects an antiquated legal decree that for too long undercut the true meaning of justice in our nation of immigrants,” CAOC President Elise R. Sanguinetti said. “Our courts should treat all people equally when they are wrongfully injured or killed, not operate as a two-tier system that drastically undervalues compensation because of a person’s immigration status. We applaud Assembly Member Gonzalez and Gov. Brown for restoring fairness to that process in our civil courts.”
The legislation specifies that it “does not affect the rights or obligations of a person” under various existing statutes, including the 2002 legislation that prohibited discovery into the immigration status of employees who have sued their employers for violations of labor and employment laws unless the employer can show by clear and convincing evidence that the discovery is necessary to comply with federal immigration law.
Salas Case
That legislation was largely upheld in Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, although the high court did find that under supreme federal law, an employee whose unauthorized status is discovered by the employer only after being fired or not rehired may not recover lost pay for the period after that discovery.
AB 2159 passed the state Senate two weeks ago by a vote of 28-11. Anthony Canella, R-Ceres, and Andy Vidak, R-Hanford, joined majority Democrats in support of the bill.
The bill passed the Assembly in April by a vote of 53-20. Catherine Baker, R-San Ramon; Eric Linder, R-Corona; Brian Maienschein, R-San Diego; and Kristin Olsen, R-Modesto, voted in favor.
Besides CAOC and MALDEF, support for the bill came from the Mexican American Bar Association of Los Angeles County, Los Angeles Mayor Eric Garcetti, and a number of labor unions and civil rights groups. Legislative analyses said no comments were submitted in opposition.
Among the other bills signed by Brown yesterday was AB 1867 by Assemblymember Marc Steinorth, R-Rancho Cucamonga. The bill, backed by the California District Attorneys Association, allows electronic copies or scans of existing hard copies of certified prior conviction records to be used in court in place of the originals.
Steinorth said in a statement that the existing rules, which allow electronic copies to be used only if the original document was prepared electronically, are “old-fashioned and obsolete.”
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