CAN AN UNDOCUMENTED IMMIGRANT FILE A PERSONAL INJURY LAWSUIT IN CALIFORNIA?
Yes! In California, undocumented immigrants have the same rights as anyone else to file a personal injury lawsuit. Defendants and their insurance companies have long tried to deter such lawsuits and minimize their outcomes by seeking admissibility of the plaintiff’s undocumented status. Thankfully, the California legislature recently passed AB 2159, adding Evidence Code Section 351.2 which states that a plaintiff’s immigration status is not admissible at trial, and that defense counsel is prohibited from asking about a plaintiff’s status during depositions or in written interrogatories.
Evidence Code Section 351.2 is a major victory for undocumented persons who are injured or killed through no fault of their own, and a broader victory for those who support the notion that all injured victims deserve fair and full compensation in our civil justice system. There are at least 11 million undocumented persons in the United States, with a disproportionate number of them living in California. They are engaged in the same fundamental activities as U.S. citizens. They are consumers, workers, parents, children, drivers, pedestrians, etc. As of February, of 2017, undocumented persons can finally file personal injury cases in California without fear, and without punitive limitations.
WHAT IF THE UNDOCUMENTED PERSON WAS INJURED WHILE ON A TEMPORARY VACATION IN CALIFORNIA?
In California, an undocumented person injured while temporarily staying in California, with or without legal permission to work or visit, has the same legal rights as anyone else to file a personal injury lawsuit. We have represented clients from many different areas of the worlds, most commonly Mexico. But laws permitting undocumented persons from filing injury lawsuits apply to visitors from any and all countries.
CAN THE FAMILY OF AN UNDOCUMENTED IMMIGRANT WHO IS KILLED IN CALIFORNIA FILE A WRONGFUL DEATH LAWSUIT?
Yes. California’s wrongful death statute does not preclude lawful heirs from filing wrongful death claims arising out of incidents that occurred in California. Lawful wrongful death heirs may file such claims, regardless of whether they witnessed the incident that caused the death, and regardless of where they live. Because of the passage of AB 2159, defense counsel cannot ask questions to try to ascertain the immigration status of the decedent/victim.
WHAT DAMAGES CAN AN UNDOCUMENTED IMMIGRANT SEEK?
Because of the passage of AB 2159, undocumented persons can seek every category of damages available to United States Citizens. These include past and future medical expenses, past and future wage loss, lost earning capacity, pain and suffering, emotional distress, loss of household services, and even punitive damages. When undocumented persons are injured through the fault of another person or entity, they are entitled to be made whole and receive full compensation.
ARE THERE ANY LIMITATIONS ON THE DAMAGES OF AN UNDOCUMENTED IMMIGRANT?
Until the passage of AB 2159 (Evidence Code 351.2), the law held that wage loss of undocumented immigrants must be measured by the value of their wages in their country of origin. In countries where the wages for the plaintiff’s occupation are significantly lower than wages for the same job in the United States, we were forced into the strategic decision of whether to refrain from claiming lost wages to prevent the defense from highlighting the immigration status of our client in order to inflame the jury and ratchet down our client’s entire award. Now, we are able to calculate wage loss based on what our client earned in the United States. Obviously, it is still essential to produce convincing evidence in the form of witness testimony and documents such as pay stubs, employer letters, and tax returns. If our client is paid to work in exchange for cash under the table, it probably makes sense to refrain from claiming wage loss.
IS THE JUDGE OR JURY ALLOWED TO HEAR EVIDENCE THAT THE PLAINTIFF IS AN UNDOCUMENTED IMMIGRANT?
No! Evidence Code 351.2 specifically prohibits such evidence. Nonetheless, good attorneys will make a practice of seeking a pre-trial order strictly prohibiting defense counsel and defense witnesses from making mention, or even insinuation, that the injured victim was not lawfully in the Unites States at the time of the injury-producing event.
WITH THE NEW LEGISLATION THAT RENDERS IMMIGRATION STATUS INADMISSABLE IN COURT, TO UNDOCUMENTED PLAINTIFF’S STILL FACE UNIQUE CHALLENGES IN COURT?
Yes. Unfortunately, justice is not blind. Some judges and jurors may disagree, consciously or subconsciously, with the notion that undocumented persons who are injured in California should receive full compensation. Even though the Evidence Code precludes evidence of undocumented status, lawyers and clients should expect biases to creep into some jurors’ minds when the plaintiff looks different, dresses different, speaks with a strong accent, and especially if he/she needs to testify through an interpreter. In these situations, the plaintiff’s lawyer should never naively assume that jurors will follow the letter of the law. Good plaintiff lawyers must openly address these issues during jury selection. While I would never reveal to prospective jurors that my client is undocumented, I would still flesh out their feelings about the way my client looks and communicates. I want to do everything possible to eliminate prospective jurors who appear to harbor discriminatory biases based on race, ethnicity, and immigration status.