Immigration Status is Off the Table in Wrongful Death & Personal Injury Matters

By Megan Demshki

A person’s immigration status is generally irrelevant to issues of civil liability based on existing state law. However, in California, personal injury and wrongful death matters citizenship status was relevant to calculating loss of income until January 1, 2017. This was historically known as the “illegal alien” defense.

For over 30 years, the leading case in California regarding relevance of immigration status to a plaintiff’s claim for damages in a personal injury case was Rodriguez v. Kline. In Rodriguez v. Kline, the California Court of Appeal determined that an individual injured in the United States who was subject to deportation was not entitled to be compensated based upon his or her projected earning capacity in the United States, but rather could only recover future lost wages based on projected earning capacity in the county of his or her lawful citizenship. Rodriguez v. Kline (1986) 186 Cal. App. 3d 1145, 1148-1149.

In practice, this provided “that whenever a plaintiff whose citizenship [was] challenged [sought] to recover for loss of future earnings, his status in this country [should] be decided by the trial court as a preliminary question of law.” Rodriguez 186 Cal. App 3d at 1149.

Under Rodriguez v. Kline, the defendant had “the initial burden of producing proof that the plaintiff is an alien who is subject to deportation.” Rodriguez 186 Cal. App 3d at 1149. Ultimately, “[s]hould 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.” Id.

As time wore on, parties attempted to extend Rodriguez v. Kline to apply to recovery of future medical costs. Fearing deportation, many chose not to pursue personal injury or wrongful death recovery.

In early 2016, Assembly Bill No. 2159 was introduced by Assembly Member Lorena Gonzalez. The bill was co-sponsored by the Consumer Attorneys of California and the Mexican American Legal Defense and Educational Fund.

In the Senate Judiciary Bill Analysis, staff wrote, “[a]rguably, 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.” AB-2159 Evidence: Immigration Status, Bill Analysis Senate Judiciary (June 13, 2016) Page 8.

Ultimately, Assembly Bill No. 2159 was approved by Governor Brown on August 17, 2016.

As of January 1, 2017, California Evidence Code §351.2(a) now reads, “[i]n 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.”

The California Evidence Code clarifies, “[t]his section does not affect the standards of relevance, admissibility, or discovery prescribed by Section 3339 of the Civil Code, Section 7285 of the Government Code, Section 24000 of the Health and Safety Code, and Section 1171.5 of the Labor Code.” California Evidence Code §351.2(b).

In effect, this change to the California Evidence Code prohibits the admissibility and discoverability of a person’s immigration status in personal injury or wrongful death matters. However, Assembly Bill No. 2159 does not impact the standards of relevance, admissibility or discovery under some existing laws, as outlined in California Evidence Code §351.2(b), which recognize that such inquiries relating to a person’s immigration status 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.

This change to California Evidence Code §351.2 has important consequences for ensuring equal access to justice to those injured by another’s conduct, regardless of the immigration status of the injured party.

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