Immigration Status Shouldn’t Stop You From Pursuing Personal Injury or Wrongful Death Claims

Immigration status is inadmissible in California personal injury and wrongful death lawsuits, and the opposing side is not permitted to ask about it in discovery. Evidence Code § 351.2 sets out that rule in a single sentence, and it has applied to every injury and death case filed in the state since Jan. 1, 2017. 

In practice, a person hurt by a negligent driver and a family that loses a relative in a construction fall in Los Angeles pursue their claims under the same rules that govern any other claimant, with status excluded from the case entirely. 

Immigration Status in Personal Injury Cases 

In a civil action for personal injury or wrongful death, evidence of a person’s immigration status cannot be admitted, and discovery into that status is not permitted. The prohibition covers written discovery and deposition questioning as fully as it covers what reaches a jury, which leaves defense counsel without a procedural route to raise the subject at any stage of the case. 

The statute extends to any person connected to the case, which places witnesses and surviving family members under the same bar as the plaintiff. 

Subdivision (b) leaves in place the standards of relevance, admissibility and discovery set by Civil Code § 3339, Government Code § 7285, Health and Safety Code § 24000 and Labor Code § 1171.5. Those four sections, enacted together in 2002, make all state-law protections, rights and remedies available regardless of immigration status, with an exception for reinstatement remedies prohibited by federal law. Under them, status is irrelevant to liability, and inquiry into status is permitted only where a party shows clear and convincing evidence that the inquiry is necessary to comply with federal immigration law. 

California Leaves Rodriguez v. Kline Behind 

For three decades before the current statute took effect, defendants had a recognized route to shrink a wage-loss claim. In Rodriguez v. Kline, decided by the Court of Appeal in 1986, the court held that a plaintiff’s status would be resolved by the trial judge as a preliminary question. The defense carried the initial burden of producing proof that the plaintiff was subject to deportation. If it met that burden, the plaintiff then had to show the court that they had taken steps to correct the condition. A plaintiff who could not make that showing had future earnings calculated on wages available in their country of origin instead of the wages they actually earned in California. 

Assembly Bill 2159, chaptered as Stats. 2016, Ch. 132, added § 351.2 to the Evidence Code and displaced that procedure in injury and death cases. Lost earnings are now established the same way for every plaintiff, with pay records and tax filings supported by employment history and vocational testimony. 

The bottom line: Since 2016, California courts must calculate lost earnings from a plaintiff’s actual work history, regardless of immigration status.  

Where the protection reaches, and where it stops 

Civil actions outside personal injury and wrongful death fall under Evidence Code § 351.3 instead, which bars a party or attorney from disclosing immigration status in open court unless the judge first determines the evidence is admissible at an in-camera hearing requested by the party seeking disclosure. Section 351.3 carries its own exception for cases in which status is necessary to prove an element of a claim or an affirmative defense. 

Civil Code § 43.54, effective Jan. 1, 2020, provides that a person cannot be subject to civil arrest in a courthouse while attending a court proceeding or conducting legal business there. The section does not apply to arrests made under a valid judicial warrant, and it does not narrow any existing common law privilege. 

The claims and the deadlines 

Civil Code § 1714 establishes the general duty to use ordinary care, and Evidence Code § 669 supplies negligence per se where a defendant violated a safety statute and caused the type of harm the statute was written to prevent. Code of Civil Procedure § 377.60 identifies who may bring a wrongful death claim, § 377.61 governs the damages those heirs may recover, and § 377.30 preserves the claim the decedent held at death as a survival action brought by the estate. 

For workplace injuries, Labor Code § 3351 defines an employee to include persons who are not citizens or nationals of the United States, whether lawfully or unlawfully employed, which places workers’ compensation coverage on the same footing regardless of status. 

Code of Civil Procedure § 335.1 allows two years from the date of injury or death, and that period runs identically for every claimant. When a public entity is a defendant, Government Code § 911.2 requires an administrative claim within six months before a lawsuit can proceed. 

Talk to a Los Angeles Personal Injury Attorney 

J&Y Law represents injured people and grieving families across Los Angeles and the San Fernando Valley, and immigration status plays no part in whether we take a case or what we pursue. California law keeps that question out of your claim, and our consultations are confidential. We work on contingency, which means no fee unless we recover for you. Code of Civil Procedure § 335.1 gives you two years from the date of injury or death to file, and claims involving a public entity require an administrative filing within six months under Government Code § 911.2. Call J&Y Law today for a free case review.