{"id":10893,"date":"2020-08-19T10:26:10","date_gmt":"2020-08-19T18:26:10","guid":{"rendered":"https:\/\/www.aitkenlaw.com\/?p=10893"},"modified":"2020-08-19T10:26:10","modified_gmt":"2020-08-19T18:26:10","slug":"immigration-status-impact-on-wrongful-death-personal-injury-matters","status":"publish","type":"post","link":"https:\/\/www.aitkenlaw.com\/newsite\/2020\/08\/19\/immigration-status-impact-on-wrongful-death-personal-injury-matters\/","title":{"rendered":"Immigration Status is Off the Table in Wrongful Death & Personal Injury Matters"},"content":{"rendered":"

By Megan Demshki<\/a><\/p>\n

A person\u2019s immigration status is generally irrelevant to issues of civil liability based on existing state law. However, in California, personal injury<\/a> and wrongful death<\/a> matters citizenship status was relevant to calculating loss of income until January 1, 2017. This was historically known as the \u201cillegal alien\u201d defense.<\/p>\n

For over 30 years, the leading case in California regarding relevance of immigration status to a plaintiff\u2019s 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.<\/p>\n

In practice, this provided \u201cthat 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.\u201d Rodriguez 186 Cal. App 3d at 1149.<\/p>\n

Under Rodriguez v. Kline, the defendant had \u201cthe initial burden of producing proof that the plaintiff is an alien who is subject to deportation.\u201d Rodriguez 186 Cal. App 3d at 1149. Ultimately, \u201c[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.\u201d Id.<\/p>\n

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.<\/p>\n

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.<\/p>\n

In the Senate Judiciary Bill Analysis, staff wrote, \u201c[a]rguably, allowing the introduction of a victim\u2019s 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.\u201d AB-2159 Evidence: Immigration Status, Bill Analysis Senate Judiciary (June 13, 2016) Page 8.<\/p>\n

Ultimately, Assembly Bill No. 2159 was approved by Governor Brown on August 17, 2016.<\/p>\n

As of January 1, 2017, California Evidence Code \u00a7351.2(a) now reads, \u201c[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.\u201d<\/p>\n

The California Evidence Code clarifies, \u201c[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.\u201d California Evidence Code \u00a7351.2(b).<\/p>\n

In effect, this change to the California Evidence Code prohibits the admissibility and discoverability of a person\u2019s 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 \u00a7351.2(b), which recognize that such inquiries relating to a person\u2019s 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.<\/p>\n

This change to California Evidence Code \u00a7351.2 has important consequences for ensuring equal access to justice to those injured by another\u2019s conduct, regardless of the immigration status of the injured party.<\/p>\n

Read More By Megan Demshki<\/h3>\n

\u00bb Off the beaten path: Identifying and preparing novice expert witnesses<\/a><\/p>\n

\u00bb Assembly Bill 3262 Will Hold Online Marketplaces Responsible for Selling Dangerous Products<\/a><\/p>\n

 <\/p>\n

For the latest news and information from Aitken*Aitken*Cohn, sign up for our Newsletter<\/a>.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

By Megan Demshki A person\u2019s 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 \u201cillegal alien\u201d defense. For over 30 years,… read more<\/a><\/p>\n","protected":false},"author":1,"featured_media":10899,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8,12],"tags":[],"class_list":["post-10893","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-articles","category-blog"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/posts\/10893","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/comments?post=10893"}],"version-history":[{"count":0,"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/posts\/10893\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/media\/10899"}],"wp:attachment":[{"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/media?parent=10893"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/categories?post=10893"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.aitkenlaw.com\/newsite\/wp-json\/wp\/v2\/tags?post=10893"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}