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How California's Ban on Immigration Status Impacts Economic Damages Claims in Personal Injury & Wrongful Death Litigation

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December 2017

By: , , and Aimee Hamoy

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California Law Update
December 2017
How California's Ban on Immigration Status Impacts Economic Damages Claims in Personal Injury & Wrongful Death Litigation
By Robert M. Bodzin and Aimee Hamoy




Contact Information


Robert  M. Bodzin
Robert M. Bodzin is a partner/trial attorney at the law firm of Burnham Brown in Oakland, California.  Mr. Bodzin is a chair of Burnham Brown's Product Liability and Transportation Practice Groups.  He litigates many complex and catastrophic injury and wrongful death cases. 
Aimee Hamoy
Aimee Hamoy is a partner/trial attorney at the law firm of Burnham Brown in Oakland, California.  Ms. Hamoy is one of the firm's preeminent trial attorneys and she has tried over 45 civil and criminal cases.  Ms. Hamoy is a member of Burnham Brown's Government & Public Entity Practice Group.  She is a frequent speaker at Women's Leadership and Diversity Law Events.
  • Oakland
  • Los Angeles
  • San Francisco
  • Las Vegas
  • Reno




Though typically evidence of immigration status was irrelevant to a determination of liability, it was well-established in California that an undocumented plaintiff's claim for lost earnings should be based on the wages he or she would have earned in his or her native country as opposed to wages paid in the United States.  Rodriguez v Kline , 186 Cal. App. 3d 1145 (1986) A contrary rule was held to "allow someone who is not lawfully available for future work in the United States to receive compensation for which he is not entitled." Id. at 1149; see also Alonso v. State of California, 50 Cal. App. 3d 242 (1975).
Until 2017, Rodriguez, required trial courts to hold a hearing outside the presence of the jury, pursuant to California Evidence Code section 310 and 402, to assess the proper basis for calculating a plaintiff's future wage loss claim.  In doing so, the Court, in essence, determined the citizenship status of the plaintiff. Id.  Defendants maintained the initial burden of establishing that Plaintiff is subject to deportation. Id. The Plaintiff must then prove that he or she has taken steps to correct the deportable condition. Id. Should Defendants prevail and the Plaintiff fail to meet his or her burden, Plaintiff's future lost earnings claim "must be limited to those he could anticipate receiving in his or her country of lawful citizenship." Id. (Emphasis added.)
The passage of AB 2159 in the summer of 2016 explicitly abolished the Rodriguez rule and reaffirmed California's status as a state that very much rejects the current thinking on immigration coming out of Washington D.C. Codified as Evidence Code Section §351.2, it prohibits the following in a personal injury or wrongful death action:
Evidence of a person's immigration status or discovery into a person's immigration status.
The impact of this new law on parties on both sides of personal injury or wrongful death cases will be significant. Almost overnight, an undocumented plaintiff in a personal injury case or a survivor of someone undocumented whose death is the subject of a wrongful death have become protected from answering any questions or producing documents on the subject of their immigration status. We expect the result of this prohibition will be increased reliance on the pre-trial discovery process directed towards a plaintiff to produce proof of earnings in the form of W-2 forms, 1099 forms, check stubs, pay statements, cancelled checks and bank account statements. While a plaintiff is not required to produce such proof of earnings, such documents are generally provided as proof of past earnings and predictors of future earnings. Evidence Code Section §351.2 does not change the basic requirement of California law that evidence of future wage or earnings loss cannot be speculative and must be proved with reasonable certainty.  Mendoyoma, Inc. v. County of Mendocino, 8 Cal. App. 3d 873, 881 (1970).
As future economic loss can also be proven by testimony, it is essential that plaintiff, his or her employer, and all witnesses who know about the past and future earnings possibility of plaintiff be deposed before trial.
In instances where cases go to trial and some or all of the documents are missing, it is important that the defense trial attorney serves formal notices to produce for the missing evidence. (CCP §1987 et seq.) While the defense trial attorney is not permitted to bring up the immigration status of the plaintiff. It is most certainly proper to comment on the lack of documentary evidence or witnesses to prove past wage/earnings as a benchmark for proof of future economic damages.
Existing jury instructions are almost tailor made to be used in these circumstances:
CACI 203.Party Having Power to Produce Better Evidence
You may consider the ability of each party to provide evidence. If a
party provided weaker evidence when it could have provided stronger evidence, you may distrust the weaker evidence
CACI 204.Willful Suppression of Evidence
You may consider whether one party intentionally concealed or
destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party
These instructions direct the jury to carefully evaluate documents or witnesses that are missing from the case. The personal injury plaintiff or the surviving spouse in a wrongful death case will almost always have better access to the wage/earnings records than a defendant. It is the plaintiff or decedent who received his/her pay checks, pay stubs, W-2 forms and 1099 forms and bank account statements and who have the best access to these documents. If such documents are not produced at trial, the jury has the absolute right to conclude that plaintiff had the better ability to produce this evidence but did not or in some cases, suppressed the evidence as it would show a lesser earnings amount.
Overall, the change in California law driven by AB 2159 has given personal injury and wrongful death plaintiffs an advantage because it has eliminated the ability of the defense to seek a ruling that future wage loss should be calculated in the currency of their native country, rather than the United States. However, because existing California law mandates that future economic damages be awarded only if they can be proven with reasonable certainty and without speculation, individuals and businesses targeted by these lawsuits can protect themselves by being strategic during the discovery and trial process.
This article is presented for informational purposes only and is not intended to constitute legal advice.