Riverside County Bar Association
Riverside County Bar Association Riverside County Bar Association

President's Message—March 2017

By Jean-Simon Serrano

Jean-Simon Serrano

With discussion of immigration taking up much of the public discourse recently, I thought I would touch on a recent change to the Evidence Code that didn’t seem to get much notice or attention but which has far-reaching implications for undocumented workers.

Until very recently, damages were calculated differently for citizens/residents vs. those not legally in the United States. Typically, in a personal injury case, you can recover medical bills, fees for future medical care, lost earnings and earning capacity, pain and suffering. As it relates to lost earnings and loss of earning capacity, the measuring of said damages is usually based on earnings history. For example, someone who has earned $75,000.00/year for the past 20 years can reasonably expect that they will continue to earn at least at that level into the future. That is, of course, unless the plaintiff is not a legal resident or citizen. That plaintiff, with the SAME history of earning $75,000.00/year for the past 20 years has not been able to claim damages based on that amount. Since 1986 and the case of Rodriguez v. Kline (1986) 186 Cal. App. 3d 1147, lost earnings for an undocumented worker must be based on their potential earnings in their native country. In Rodriguez (supra), the plaintiff suffered substantial injury and had been working in the United States for 20 years. The defendant in that case appealed the award of damages and the Appellate Court overturned the verdict, finding that Mr. Rodriguez’s damages should be based on his potential earning capacity in Mexico, and not on based on his actual earnings over the past 20 years, in the United States. This has been the state of the law since Rodriguez.

In recent years, it has been argued that the finding in Rodriguez should not be limited to lost earnings/earning capacity and should also apply to the cost of future medical treatment. It is argued that future medical treatment should be calculated based on its cost in the country of plaintiff’s lawful citizenship. For countries with nationalized healthcare, I’ve heard the defense argue that there should be no award for future medical treatment. In essence the law works, in many instances, to reduce liability for defendants whom injure plaintiffs who are not in the country legally.

Cases involving undocumented workers often include discovery regarding the plaintiff’s legal status, propounded solely in what seems to be an attempt to harass, scare, or intimidate these persons.

In August of last year, California Assembly Bill 2159 passed, adding Section 351.2 to the Evidence Code. This Section reads:

  1. In 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.
  2. This 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.

Because this section is so new, its full effect remains to be seen; however, it seems reasonable to assume that it will change the way damages such as loss of earning capacity and future medical expenses are calculated going forward. One’s legal status is not to be admitted into evidence, the jury should be unaware of the plaintiff’s status when it comes time to calculate damages, and one’s legal status should not be used as a metric for calculating lost earnings, past and future. Further, this Section will certainly end discovery aimed at scaring or intimidating plaintiffs who are not in the country legally.

Jean-Simon Serrano is an associate attorney with the law firm of Heiting & Irwin.


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Riverside County Bar Association
Riverside County Bar Association
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Riverside, CA 92501