Existing law makes a legislative finding and declaration that all protections, rights, and remedies available under state law, except as prohibited by federal law, are available to individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state pursuant to provisions in the Civil Code, the Government Code, the Health and Safety Code, and the Labor Code. Existing law, in addition, finds and declares that for the purposes of enforcing state labor, employment, civil rights, and employee housing laws, a persons immigration status is irrelevant to the issue of liability, and no inquiry shall be permitted into a persons immigration status, except when necessary to comply with federal immigration law.

This bill instead would find and declare that for the purposes of enforcing state labor, employment, civil rights, consumer protection, and housing laws, a persons immigration status is irrelevant to the issue of liability, and that no inquiry shall be permitted into a persons immigration status, unless it is necessary in order to comply with federal immigration law.

Existing law makes a legislative finding and declaration that all protections, rights, and remedies available under state law, except as prohibited by federal law, are available to individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state pursuant to provisions in the Civil Code, the Government Code, the Health and Safety Code, and the Labor Code. Existing law, in addition, finds and declares that for the purposes of enforcing state labor, employment, civil rights, and employee housing laws, a persons immigration status is irrelevant to the issue of liability, and no inquiry shall be permitted into a persons immigration status, except when necessary to comply with federal immigration law.

This bill instead would find and declare that for the purposes of enforcing state labor, employment, civil rights, consumer protection, and housing laws, a persons immigration status is irrelevant to the issue of liability, and that no inquiry shall be permitted into a persons immigration status, unless it is necessary in order to comply with federal immigration law.

Existing law makes a legislative finding and declaration that all protections, rights, and remedies available under state law, except as prohibited by federal law, are available to individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state pursuant to provisions in the Civil Code, the Government Code, the Health and Safety Code, and the Labor Code. Existing law, in addition, finds and declares that for the purposes of enforcing state labor, employment, civil rights, and employee housing laws, a persons immigration status is irrelevant to the issue of liability, and no inquiry shall be permitted into a persons immigration status, except when necessary to comply with federal immigration law.

This bill also instead would find and declare that for the purposes of enforcing consumer protection state labor, employment, civil rights, consumer protection, and housing laws, a persons immigration status is irrelevant to the issue of liability, and that no inquiry shall be permitted into a persons immigration status, unless it is necessary in order to comply with federal immigration law.

Existing law makes a legislative finding and declaration that all protections, rights, and remedies available under state law, except as prohibited by federal law, are available to individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. state pursuant to provisions in the Civil Code, the Government Code, the Health and Safety Code, and the Labor Code. Existing law, in addition, finds and declares that for the purposes of enforcing state labor, employment, civil rights, and employee housing laws, a persons immigration status is irrelevant to the issue of liability, and no inquiry shall be permitted into a persons immigration status, except when necessary to comply with federal immigration law.

This bill also would find and declare that for the purposes of enforcing consumer protection laws, a persons immigration status is irrelevant to the issue of liability, and that no inquiry shall be permitted into a persons immigration status, except when unless it is necessary in order to comply with federal immigration law.

Existing law makes a legislative finding and declaration that all protections, rights, and remedies available under state law, except as prohibited by federal law, are available to individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. Existing law, in addition, finds and declares that for the purposes of enforcing state labor, employment, civil rights, and employee housing laws, a persons immigration status is irrelevant to the issue of liability, and no inquiry shall be permitted into a persons immigration status, except when necessary to comply with federal immigration law.

This bill also would find and declare that for the purposes of enforcing consumer protection laws, a persons immigration status is irrelevant to the issue of liability, and that no inquiry shall be permitted into a persons immigration status, except when necessary to comply with federal immigration law.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1690

Author:(Committee on Judiciary)

As Amended Ver:May 26, 2017

Majority vote

Original Committee Reference: JUD.

SUMMARY: Extends protections in existing law that prohibit inquiry into a litigant's immigration status in civil actions to enforce state labor, employment, civil rights, and housing laws, to actions to enforce the state's consumer protection laws. Specifically, this bill clarifies that for purposes of enforcing state consumer protection laws, a person's immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws, no inquiry shall be permitted into a person's immigration status, except where the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.

The Senate amendments clarify that immigration status is not relevant for purposes of enforcing the state's housing laws in general, rather than just the state's employee housing laws.

EXISTING LAW:

1. Provides that all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. (Civil Code Section 3339(a); Government Code Section 7285(a); Health & Safety Code Section 24000(a); Labor Code Section 1171.5(a).)
2. Provides that for purposes of enforcing state labor, employment, civil rights, and employee housing laws, a person's immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person's immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law. (Civil Code Section 3339(b); Government Code Section 7285(b); Health & Safety Code Section 24000(b); Labor Code Section 1171.5(b).)
3. Provides that the immigration status of a minor child seeking recovery under any applicable law is irrelevant to the issues of liability or remedy, except for employment-related prospective injunctive relief that would directly violate federal law. (Civil Code 3339.5(a).)
4. Prohibits discovery or other inquiry in a civil action or proceeding relating to a minor child's immigration status except where the minor child's claims place the minor child's immigration status directly in contention or the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law. (Civil Code 3339.5(b).)
5. Provides that all of the above are declarative of existing law. (Civil Code Section 3339(c); Civil Code Section 3339.5(c); Government Code Section 7285(c); Health & Safety Code Section 24000(c); Labor Code Section 1171.5(c).)
6. Pursuant to case law, provides that the defense of unclean hands is inapplicable in statutes intended to protect consumers, including California's Immigration Consultants Act (ICA). (Mendoza v. Ruesga (2008) 169 C.A.4th 270, 279.)

FISCAL EFFECT: None

COMMENTS: This bill would clarify that the protections against inquiry into immigration status that now apply to civil actions to enforce the state's labor, employment, civil rights and employee housing laws also apply to disputes regarding consumer protection and housing laws. According to the Chair of the Judiciary Committee:

AB 1690 merely clarifies existing law that prohibits inquiry into immigration status in most civil matters to make it clear that such inquiries are also prohibited in consumer and housing disputes. This clarification will help protect vulnerable persons seeking to enforce their consumer and housing rights. A person's social security number is a proxy for immigration status, the inquiry about which is sometimes used to undercut the consumer's legal rights, intimidate or dissuade a person from pursuing their rights, and to chill future actions by undocumented immigrants.

This bill merely restates, codifies, and clarifies existing law. As state laws have continued to evolve in this area, some courts have furthered this public policy by holding that immigration status is irrelevant to liability issues (See, e.g., Hernández v. Paicius (2003) 109 Cal.App.4th 452, 460, holding that, in a medical malpractice action, trial court erred in not granting plaintiff's motion to exclude reference to his immigration status because evidence of such status was entirely irrelevant to liability, particularly where plaintiff was not claiming loss of future earnings.)

Nevertheless, existing law may not be sufficiently clear that information about a person's immigration status is irrelevant in actions to enforce the state's consumer protection and housing laws. Some defendants have taken advantage of this oversight by seeking to obtain discovery about immigration status in an apparent effort to intimidate plaintiffs and discourage them from exercising their legal rights. For example, in a recent San Mateo County case, an undocumented citizen brought a consumer protection action against a Modesto used car dealer for violations of the Automobile Sales Finance Act, including failure to disclose the vehicle's history as a rental. The car dealership served written discovery on the plaintiff, asking him to admit that he did not have a social security number. He objected on relevance and privacy grounds. Ironically, prior to the consumer's action, the dealership advertised heavily on Spanish language television stations, soliciting undocumented immigrants. For example, one of the ads stated United States (U.S.) citizenship wasn't required, promising that, "Even if you only have your Consular ID we can also help you get a very good deal here." The court ruled in the plaintiff's favor, but declined to impose monetary sanctions on the defense for improper inquiry into the plaintiff's immigration status because the court felt that the law prohibiting inquiry into immigration status in a consumer protection matter was not sufficiently clear.

Amendments to four identical sections of the law are proposed by this bill. SB 1818 (Romero), Chapter 1071, Statutes of 2002, enacted the Civil Code provision that is amended and clarified in this bill. SB 1818 enacted not only Civil Code 3339, but also provisions in three other sections of code – the Government, Health and Safety and Labor Codes – that are identical to Section 3339. All four code sections, as a result, include the same legislative findings and declarations regarding the protections, rights and remedies of employees and civil litigants, regardless of immigration status, under state law and states that those declarations are declarative of existing law.

California Catholic Conference; Immigrant Legal Resource Center; Our Family Coalition; South Asian Network; Legal Aid Association of California; Public Law Center; and Public Counsel write in support of the bill, all saying substantially the same as follows:

Immigration status is a personal piece of information that warrants a strong right to privacy. Federal courts have agreed that allowing discovery into immigration status will deter plaintiffs from pursuing meritorious claims, as highlighted by Flores v. Albertsons, Inc. In this case, the defendant argued that inquiring into the plaintiff's immigration status was relevant to the action since this information could have limited their liability for back pay. . . AB 1690 will impede these types of inquiries by clarifying that California Civil Code Section 3339, which states that a person's immigration status is irrelevant to liability issues, applies to consumer protection laws in addition to the listed labor, employment, civil rights, and employee housing laws. Furthermore, this bill will also make a resounding statement: our state will protect all individuals in every aspect of the law, regardless of immigration status.

Likewise, Consumer Attorneys of California write that, "The legislature and courts alike have consistently recognized that discovery aimed at immigration status violates public policy. This bill will clarify that inquiring into a consumer's immigration status are similarly protected by our state laws."

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334 FN: 0000997 FN:

 THIRD READING  

Bill No: AB 1690

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 6/13/17

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

ASSEMBLY FLOOR: 65-0, 4/20/17 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill clarifies and codifies that the protections against inquiry into immigration status that now apply to civil actions to enforce the state’s labor, employment, civil rights and employee housing laws, also extends to disputes regarding consumer protection and to all housing laws.

ANALYSIS:

Existing law:

1. Provides that all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. (Civ. Code Sec. 3339(a); Gov. Code Sec. 7285(a); Health & Saf. Code Sec. 24000(a); Lab. Code Sec. 1171.5(a).)
2. Provides that for purposes of enforcing state labor, employment, civil rights, and employee housing laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law. (Civ. Code Sec. 3339(b); Gov. Code Sec. 7285(b); Health & Saf. Code Sec. 24000(b); Lab. Code Sec. 1171.5(b).)
3. Provides that the immigration status of a minor child seeking recovery under any applicable law is irrelevant to the issues of liability or remedy, except for employment-related prospective injunctive relief that would directly violate federal law. (Civ. Code 3339.5(a).)
4. Provides that all of the above are declarative of existing law. (Civ. Code Sec. 3339(c); Gov. Code Sec. 7285(c); Health & Saf. Code Sec. 24000(c); Lab. Code Sec. 1171.5(c).)
5. Holds that California’s laws making immigration status irrelevant to the issue of liability are not preempted by applicable federal law. (Incalza v. Fendi North America, Inc. (9th Cir 2007) 479 F.3d 1005, 1010-1013; Reyes v. Van Elk, Ltd. (2007) 148 Cal.App.4th 604, 616.)
6. Prohibits discovery or other inquiry in a civil action or proceeding relating to a minor child’s immigration status except where the minor child’s claims place the minor child’s immigration status directly in contention or the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law. (Civ. Code 3339.5(b).)
7. Holds that the defense of unclean hands is inapplicable in statutes intended to protect consumers, including California’s Immigration Consultants Act (ICA). (Mendoza v. Ruesga (2008) 169 Cal.App.4th 270, 279.)

This bill clarifies and codifies that when people seek to enforce state labor, employment, civil rights, consumer protection, or housing law rights under law, their immigration status is not generally relevant to the issue of liability and that inquiring into immigration status during discovery shall only be permitted when it is shown to be relevant to the particular case by clear and convincing evidence.

Background

In 2002, the United States Supreme Court, in Hoffman Plastic Compounds Inc. v. NLRB (2002) 535 U.S. 137, held that National Labor Relations Board (NLRB) is precluded from awarding backpay to undocumented workers because an award to these specific workers would be beyond the bounds of NLRB's remedial discretion and run counter to the federal Immigration Reform and Control Act of 1986 (IRCA). Even though the workers might be victims of unfair labor practices, the workers were never legally authorized to work in the United States, and as a result, the Court held that awarding backpay to undocumented immigrants would “unduly trench upon explicit statutory prohibitions critical to federal immigration policy,” as expressed in IRCA and “would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.” (Id. at 151, noting at 152 that NLRB's “lack of authority to award backpay does not mean that the employer gets off scot-free. The Board here has already imposed other significant sanctions against Hoffman - sanctions Hoffman does not challenge.”)

In response to Hoffman, this Legislature enacted an urgency measure, AB 1818 (Romero, Chapter 1071, Statutes of 2002) to limit the potential effects of that decision on California’s labor and civil rights laws. The bill codified substantially similar legislative findings and declarations throughout the Civil Code, the Government Code, the Labor Code, and the Health and Safety Code relative to enforcement actions relating to the rights of immigrants. For example, the following findings and declarations were codified in Section 3339 of the Civil Code: (1) all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals, regardless of immigration status, who have applied for employment, or who are or who have been employed, in this state; (2) for purposes of enforcing state labor, employment, civil rights, and employee housing laws, a person’s immigration status is irrelevant to the issue of liability and no inquiry shall be permitted into a person’s immigration status except when necessary to comply with federal immigration law; and (3) the bill’s provisions are declaratory of existing law.

In the intervening years, court decisions have made clear that immigration status is irrelevant to the question of liability in other civil law contexts involving enforcement of state public policy. (See, e.g., Hernández v. Paicius (2003) 109 Cal.App.4th 452; Mendoza v. Ruesga (2008) 169 C.A.4th 270.) However, since the statutes themselves still mention only labor, employment, civil rights, and employee housing, litigants and courts have sometimes been unsure whether immigration status may be raised in other contexts. Some defendants have tried to take advantage of this confusion in order to raise immigration status and thereby intimidate plaintiffs from pursuing their claims.

This bill would provide clarity for courts and litigants alike that the rule against inquiry against immigration status extends to consumer protection and all housing law contexts.

Comments

Example of the problem the bill is intended to address. The existing protections against discovery and introduction of immigration status were enacted to help prevent defendants from attempting to evade legal responsibility for violating state laws through intimidation of plaintiffs or reductions in liability. While unscrupulous defendants, and occasionally their legal counsel, sometimes continue to try to raise immigration status for nefarious reasons even in the context of labor, employment, civil rights, and employee housing claims, the law is sufficiently clear that such practices can be quickly and effectively addressed.

California courts have held that immigration status is equally irrelevant in other civil law contexts. Yet, because the relevant statutes only mention labor, employment, civil rights, and employee housing explicitly, some courts have been reticent to sanction defendants that seek to raise immigration status in other contexts, such as consumer protection, where immigration status is equally irrelevant and its use equally dangerous in terms of chilling legitimate enforcement of public policy.

As an example of this, the author describes a recent San Mateo County case involving the sale of a used car. The dealership advertised heavily on Spanish language television and solicited undocumented customers specifically. In one of the ads, the dealership assured viewers it did not require its customers to have U.S. citizenship, saying “[e]ven if you only have your Consular ID, we can also help you get a very good deal here.”

An undocumented resident purchased a used car from this dealership, was dissatisfied and sued for violations of the Automobile Sales Finance Act. Among other things, the plaintiff alleged that the dealer had not disclosed the vehicle’s history as a rental. In response, the dealership propounded written discovery on the plaintiff, asking him to admit that he did not have a social security number. The plaintiff objected to the questions on relevance and privacy grounds and refused to respond. The dealership brought a motion to compel the plaintiff to answer. Ultimately, the court ruled in the plaintiff’s favor, but declined to impose monetary sanctions on the defense for improper inquiry into the plaintiff’s immigration status because the court felt that the law prohibiting inquiry into immigration status in a consumer protection matter was not sufficiently clear.

This bill provides future courts and litigants with sufficient clarity that immigration status is not relevant to liability in consumer protection and housing law contexts.

Relevant case law. The author asserts that case law already extends the prohibition on inquiry into immigration status beyond those categories of cases currently listed in Civil Code Section 3339, Government Code Section 7285, Health and Safety Code Section 24000, and Labor Code Section 1171.5. In support of that proposition, the author points to two key cases in particular, Hernández v. Paicius (2003) 109 Cal.App.4th 452, and Mendoza v. Ruesga (2008) 169 Cal.App.4th 270.

In Paicius, a worker at a food packaging plant suffered broken bones and other injuries when his right hand was caught up on a dough hook in the bread-making machine. (Paicius, supra, 109 Cal.App.4th 452, 455.) After two surgeries and several medical treatments, the worker continued to experience pain and he was referred to the defendant. (Ibid.) The defendant gave him an injection of pain medication in his throat, after which, the worker alleged, he became permanently hoarse. (Id. at 456).

At trial, plaintiff’s counsel sought an in limine order “instructing Defendant and his counsel not to refer to, interrogate concerning, comment on, or attempt to suggest to the jury in any way, and further, to advise their witnesses not to refer to, comment on, or attempt to suggest any information regarding Plaintiff’s residency status, ethnicity, or country of origin.” (Paicius, supra, 109 Cal.App.4th 452, 456.) The plaintiff argued that such matters were both irrelevant and highly prejudicial without any countervailing probative value. (Ibid.) Defendant’s counsel responded that the plaintiff’s immigration status was relevant to his credibility and should be available for impeachment. The trial court denied the motion in limine and defense counsel highlighted the plaintiff’s immigration status in opening statements. The jury returned a verdict for the defense.

On appeal, California’s Fourth Appellate District emphatically ruled that the trial court had erred in denying plaintiff’s motion in limine. Relying in part upon the public policy reflected in the Civil Code, Government Code, and Labor Code sections addressed by this bill, the court held:

[The trial] court absolutely should have granted plaintiff’s motion to exclude reference to his residency status. Only relevant evidence is admissible. The court lacks discretion to admit irrelevant evidence. Not only was the evidence entirely irrelevant; it was, as the court illustrated only too early in its comments, highly inflammatory. As the Rodriguez court observed, “(E)vidence relating to citizenship and liability to deportation almost surely would be prejudicial to the party whose status was in question.” (Paicius, supra, 109 Cal.App.4th 452, 460. Internal citations and footnote omitted.)

In Ruesga, a group of undocumented individuals hired the defendant immigration consultant to help them apply for amnesty. (Mendoza v. Ruesga, supra, 169 Cal.App.4th 270, 275.) When it became clear that the consultant had misled them about the likelihood that their applications would be successful, the group sued under California’s Immigration Consultants Act (ICA). (Id. 275-276.) In response, the consultant raised the defense of unclean hands, “because [plaintiffs] knew they were unqualified for amnesty, . . . [and]. . . signed applications falsely stating [their arrival dates in the U.S.], and . . . insisted that Ruesga provide . . .fraudulent evidence . . .” (Id. at 277.) .)

The appellate court held that the unclean hands defense, which had been successful at trial, was inapplicable in disputes about the ICA for public policy reasons, including the fact that “[a]pplication of the doctrine would allow unscrupulous immigration consultants to go unpunished and undermine the protective purposes of the legislation.” (Ruesga, supra, 169 Cal.App.4th 270, 275.) Of particular significance to this bill, the court made clear that its holding was not limited to cases brought under the ICA:

Plaintiffs contend that as a matter of law the unclean hands doctrine is inapplicable to their cause of action under the ICA because it is based on [defendant’s] violation of statutes intended to protect consumers. We agree with plaintiffs. (Id. at 279. Emphasis added. Footnote omitted.)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/14/17)

California Catholic Conference

California Immigrant Policy Center

Consumer Attorneys of California

Consumers for Auto Reliability and Safety

East Bay Community Law Center

Housing and Economic Rights Advocates

Immigrant Legal Resource Center

Law Foundation of Silicon Valley

Legal Aid Association of California

Mexican American Legal Defense and Education Fund

National Association of Social Workers

Our Family Coalition

Public Counsel

Public Law Center

South Asian Network

OPPOSITION: (Verified 6/14/17)

None received

ARGUMENTS IN SUPPORT: According to the author:

AB 1690 merely clarifies existing law that prohibits inquiry into immigration status in most civil matters to make it clear that such inquiries are also prohibited in consumer disputes. This clarification will help protect vulnerable persons seeking to enforce their consumer rights. A person’s social security number is a proxy for immigration status, the inquiry about which is sometimes used to undercut the consumer’s legal rights, intimidate or dissuade a person from pursuing their rights, and to chill future actions by undocumented immigrants.

In support, East Bay Community Law Center writes:

This important bill would right an injustice that occurs too frequently: defendants seeking to scare consumer plaintiffs into dropping legitimate claims by making inquiries into the consumer’s immigration status.

Immigration status warrants strong privacy protections in litigation: it is irrelevant to the question whether the defendant has violated the state’s consumer protection laws. Permitting inquiry into the status of consumer plaintiffs would leave undocumented Californians, and those who simply do not want to have hostile attorneys inquiring into their immigration status, unable to protect themselves. As both federal and state courts have recognized, allowing discovery into immigration status deters plaintiffs from pursuing meritorious claims […] This attempted infringement of plaintiffs’ privacy rights is a common tactic. It is already barred in cases involving labor, employment, and civil rights laws. That prohibition needs to be extended to consumer protection cases as well.

ASSEMBLY FLOOR: 65-0, 4/20/17

AYES: Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bocanegra, Bonta, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Lackey, Levine, Limón, Low, Maienschein, Medina, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Weber, Wood, Rendon

NO VOTE RECORDED: Acosta, Travis Allen, Bigelow, Brough, Chen, Choi, Harper, Kiley, Mathis, Mayes, McCarty, Melendez, Patterson, Ridley-Thomas, Waldron

Prepared by:

6/14/17 15:24:20

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 1690 (Author:Committee on Judiciary)

Version: May 26, 2017

Hearing Date: June 13, 2017

Fiscal: No

Urgency: No

Consultant: TSG

SUBJECT

Personal rights: compensatory relief

DESCRIPTION

This bill would clarify and codify that the protections against inquiry into immigration status that now apply to civil actions to enforce the state’s labor, employment, civil rights and employee housing laws, also extend to disputes regarding consumer protection and to all housing laws.

BACKGROUND

In 2002, the United States Supreme Court, in Hoffman Plastic Compounds Inc. v. NLRB (2002) 535 U.S. 137, held that National Labor Relations Board (NLRB) is precluded from awarding backpay to undocumented workers because an award to these specific workers would be beyond the bounds of NLRB's remedial discretion and run counter to the federal Immigration Reform and Control Act of 1986 (IRCA). Even though the workers might be victims of unfair labor practices, the workers were never legally authorized to work in the United States, and as a result, the Court held that awarding backpay to undocumented immigrants would “unduly trench upon explicit statutory prohibitions critical to federal immigration policy,” as expressed in IRCA and “would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.” (Id. at 151, noting at 152 that NLRB's “lack of authority to award backpay does not mean that the employer gets off scot-free. The Board here has already imposed other significant sanctions against Hoffman - sanctions Hoffman does not challenge.”)

In response to Hoffman, this Legislature enacted an urgency measure, AB 1818 (Romero, Ch. 1071, Stats. 2002) to limit the potential effects of that decision on California’s labor and civil rights laws. The bill codified substantially similar legislative findings and declarations throughout the Civil Code, the Government Code, the Labor Code, and the Health and Safety Code relative to enforcement actions relating to the rights of immigrants. For example, the following findings and declarations were codified in Section 3339 of the Civil Code: (1) all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals, regardless of immigration status, who have applied for employment, or who are or who have been employed, in this state; (2) for purposes of enforcing state labor, employment, civil rights, and employee housing laws, a person’s immigration status is irrelevant to the issue of liability and no inquiry shall be permitted into a person’s immigration status except when necessary to comply with federal immigration law; and (3) the bill’s provisions are declaratory of existing law.

In the intervening years, court decisions have made clear that immigration status is irrelevant to the question of liability in other civil law contexts involving enforcement of state public policy. (See, e.g., Hernández v. Paicius (2003) 109 Cal.App.4th 452; Mendoza v. Ruesga (2008) 169 C.A.4th 270.) However, since the statutes themselves still mention only labor, employment, civil rights, and employee housing, litigants and courts have sometimes been unsure whether immigration status may be raised in other contexts. Some defendants have tried to take advantage of this confusion in order to raise immigration status and thereby intimidate plaintiffs from pursuing their claims.

This bill would provide clarity for courts and litigants alike that the rule against inquiry against immigration status extends to consumer protection and all housing law contexts.

CHANGES TO EXISTING LAW

Existing law provides that all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. (Civ. Code Sec. 3339(a); Gov. Code Sec. 7285(a); Health & Saf. Code Sec. 24000(a); Lab. Code Sec. 1171.5(a).)

Existing law provides that for purposes of enforcing state labor, employment, civil rights, and employee housing laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law. (Civ. Code Sec. 3339(b); Gov. Code Sec. 7285(b); Health & Saf. Code Sec. 24000(b); Lab. Code Sec. 1171.5(b).)

Existing law provides that the immigration status of a minor child seeking recovery under any applicable law is irrelevant to the issues of liability or remedy, except for employment-related prospective injunctive relief that would directly violate federal law. (Civ. Code 3339.5(a).)

Existing law provides that all of the above are declarative of existing law. (Civ. Code Sec. 3339(c); Gov. Code Sec. 7285(c); Health & Saf. Code Sec. 24000(c); Lab. Code Sec. 1171.5(c).)

Existing law holds that California’s laws making immigration status irrelevant to the issue of liability are not preempted by applicable federal law. (Incalza v. Fendi North America, Inc. (9th Cir 2007) 479 F.3d 1005, 1010-1013; Reyes v. Van Elk, Ltd. (2007) 148 Cal.App.4th 604, 616.)

Existing law prohibits discovery or other inquiry in a civil action or proceeding relating to a minor child’s immigration status except where the minor child’s claims place the minor child’s immigration status directly in contention or the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law. (Civ. Code 3339.5(b).)

Existing law, holds that the defense of unclean hands is inapplicable in statutes intended to protect consumers, including California’s Immigration Consultants Act (ICA). (Mendoza v. Ruesga (2008) 169 Cal.App.4th 270, 279.)

This bill would clarify and codify that when people seek to enforce state labor, employment, civil rights, consumer protection, or housing law, their immigration status is not generally relevant to the issue of liability and that inquiring into immigration status during discovery shall only be permitted when it is shown to be relevant to the particular case by clear and convincing evidence.

COMMENT

1. Stated need for the bill

According to the author:

AB 1690 merely clarifies existing law that prohibits inquiry into immigration status in most civil matters to make it clear that such inquiries are also prohibited in consumer disputes. This clarification will help protect vulnerable persons seeking to enforce their consumer rights. A person’s social security number is a proxy for immigration status, the inquiry about which is sometimes used to undercut the consumer’s legal rights, intimidate or dissuade a person from pursuing their rights, and to chill future actions by undocumented immigrants.

In support, East Bay Community Law Center writes:

This important bill would right an injustice that occurs too frequently: defendants seeking to scare consumer plaintiffs into dropping legitimate claims by making inquiries into the consumer’s immigration status.

It is the most vulnerable Californians who are likely to be deterred from pursuing their rights by these kinds of threats. And all Californians suffer when legitimate claims against scam artists for violations of the state’s consumer protection laws are not pursued, leaving the scammers free to continue their operations.

Immigration status warrants strong privacy protections in litigation: it is irrelevant to the question whether the defendant has violated the state’s consumer protection laws. Permitting inquiry into the status of consumer plaintiffs would leave undocumented Californians, and those who simply do not want to have hostile attorneys inquiring into their immigration status, unable to protect themselves. As both federal and state courts have recognized, allowing discovery into immigration status deters plaintiffs from pursuing meritorious claims […] This attempted infringement of plaintiffs’ privacy rights is a common tactic. It is already barred in cases involving labor, employment, and civil rights laws. That prohibition needs to be extended to consumer protection cases as well.

In further support, Consumers for Auto Reliability and Safety writes:

This legislation is necessary to discourage unscrupulous auto dealers and other shady businesses from advertising in various languages and luring immigrants into doing business with them, only to cheat them and then seek to intimidate them from taking legal action to defend their rights. Such practices harm not only the affected individuals and their families, but also siphon off limited funds that could have been used to do business with more honest businesses, harming the larger community.

2. Example of the problem the bill is intended to address

The existing protections against discovery and introduction of immigration status were enacted to help prevent defendants from attempting to evade legal responsibility for violating state laws through intimidation of plaintiffs or reductions in liability. While unscrupulous defendants, and occasionally their legal counsel, sometimes continue to try to raise immigration status for nefarious reasons even in the context of labor, employment, civil rights, and employee housing claims, the law is sufficiently clear that such practices can be quickly and effectively addressed.

California courts have held that immigration status is equally irrelevant in other civil law contexts. (See comment 4, below.) Yet, because the relevant statutes only mention labor, employment, civil rights, and employee housing explicitly, some courts have been reticent to sanction defendants that seek to raise immigration status in other contexts, such as consumer protection, where immigration status is equally irrelevant and its use equally dangerous in terms of chilling legitimate enforcement of public policy.

As an example of this, the author describes a recent San Mateo County case involving the sale of a used car. The dealership advertised heavily on Spanish language television and solicited undocumented customers specifically. In one of the ads, the dealership assured viewers it did not require its customers to have U.S. citizenship, saying “[e]ven if you only have your Consular ID, we can also help you get a very good deal here.”

An undocumented resident purchased a used car from this dealership, was dissatisfied and sued for violations of the Automobile Sales Finance Act. Among other things, the plaintiff alleged that the dealer had not disclosed the vehicle’s history as a rental. In response, the dealership propounded written discovery on the plaintiff, asking him to admit that he did not have a social security number. The plaintiff objected to the questions on relevance and privacy grounds and refused to respond. The dealership brought a motion to compel the plaintiff to answer. Ultimately, the court ruled in the plaintiff’s favor, but declined to impose monetary sanctions on the defense for improper inquiry into the plaintiff’s immigration status because the court felt that the law prohibiting inquiry into immigration status in a consumer protection matter was not sufficiently clear.

This bill would provide future courts and litigants with sufficient clarity that immigration status is not relevant to liability in consumer protection and housing law contexts.

3. Relevant case law

The author asserts that case law already extends the prohibition on inquiry into immigration status beyond those categories of cases currently listed in Civil Code Section 3339, Government Code Section 7285, Health and Safety Code Section 24000, and Labor Code Section 1171.5. In support of that proposition, the author points to two key cases in particular, Hernández v. Paicius (2003) 109 Cal.App.4th 452, and Mendoza v. Ruesga (2008) 169 Cal.App.4th 270.

In Paicius, a worker at a food packaging plant suffered broken bones and other injuries when his right hand was caught up on a dough hook in the bread-making machine. (Paicius, supra, 109 Cal.App.4th 452, 455.) After two surgeries and several medical treatments, the worker continued to experience pain and he was referred to the defendant. (Ibid.) The defendant gave him an injection of pain medication in his throat, after which, the worker alleged, he became permanently hoarse. (Id. at 456).

At trial, plaintiff’s counsel sought an in limine order “instructing Defendant and his counsel not to refer to, interrogate concerning, comment on, or attempt to suggest to the jury in any way, and further, to advise their witnesses not to refer to, comment on, or attempt to suggest any information regarding Plaintiff’s residency status, ethnicity, or country of origin.” (Paicius, supra, 109 Cal.App.4th 452, 456.) The plaintiff argued that such matters were both irrelevant and highly prejudicial without any countervailing probative value. (Ibid.) Defendant’s counsel responded that the plaintiff’s immigration status was relevant to his credibility and should be available for impeachment. The trial court denied the motion in limine and defense counsel highlighted the plaintiff’s immigration status in opening statements. The jury returned a verdict for the defense.

On appeal, California’s Fourth Appellate District emphatically ruled that the trial court had erred in denying plaintiff’s motion in limine. Relying in part upon the public policy reflected in the Civil Code, Government Code, and Labor Code sections addressed by this bill, the court held:

[The trial] court absolutely should have granted plaintiff’s motion to exclude reference to his residency status. Only relevant evidence is admissible. The court lacks discretion to admit irrelevant evidence. Not only was the evidence entirely irrelevant; it was, as the court illustrated only too early in its comments, highly inflammatory. As the Rodriguez court observed, “(E)vidence relating to citizenship and liability to deportation almost surely would be prejudicial to the party whose status was in question.” (Paicius, supra, 109 Cal.App.4th 452, 460. Internal citations and footnote omitted.)

In Ruesga, a group of undocumented individuals hired the defendant immigration consultant to help them apply for amnesty. (Mendoza v. Ruesga, supra, 169 Cal.App.4th 270, 275.) When it became clear that the consultant had misled them about the likelihood that their applications would be successful, the group sued under California’s Immigration Consultants Act (ICA). (Id. 275-276.) In response, the consultant raised the defense of unclean hands, “because [plaintiffs] knew they were unqualified for amnesty, . . . [and]. . . signed applications falsely stating [their arrival dates in the U.S.], and . . . insisted that Ruesga provide . . .fraudulent evidence . . .” (Id. at 277.) .)

The appellate court held that the unclean hands defense, which had been successful at trial, was inapplicable in disputes about the ICA for public policy reasons, including the fact that “[a]pplication of the doctrine would allow unscrupulous immigration consultants to go unpunished and undermine the protective purposes of the legislation.” (Ruesga, supra, 169 Cal.App.4th 270, 275.) Of particular significance to this bill, the court made clear that its holding was not limited to cases brought under the ICA:

Plaintiffs contend that as a matter of law the unclean hands doctrine is inapplicable to their cause of action under the ICA because it is based on [defendant’s] violation of statutes intended to protect consumers. We agree with plaintiffs. (Id. at 279. Emphasis added. Footnote omitted.)

4. Author’s amendments

Since this bill passed out of the Assembly, the author has made two largely technical amendments to it. The first amendment eliminates an existing discrepancy between the four code sections – Civil Code Section 3339, Government Code Section 7285, Health and Safety Code Section 24000, and Labor Code Section 1171.5 – addressed by this bill. Confusingly, not all of the four statutes mentioned the same categories of cases. As amended, this bill would make them match one another.

The second amendment strikes the modifier “employee” before “housing,” thus clarifying that the statutes apply to all housing situations, and not just those of employees. Tenants and homebuyers are consumers of rental housing and real estate respectively, so the bill would have contradicted itself had it included consumer protection but applied only to employee housing. Moreover, the same public policy considerations apply to housing disputes, as do to labor, employment, civil rights, and consumer protection.

Support: East Bay Community Law Center; California Catholic Conference; California Immigrant Policy Center; Consumer Attorneys of California; Consumers for Auto Reliability and Safety; Housing and Economic Rights Advocates; Immigrant Legal Resource Center; Law Foundation of Silicon Valley; Legal Aid Association of California; Mexican American Legal Defense and Education Fund; National Association of Social Workers; Our Family Coalition; Public Counsel; Public Law Center; South Asian Network

Opposition: None known

HISTORY

Source: Assembly Committee on the Judiciary

Related Pending Legislation:

SB 785 (Wiener, 2017) would require an in camera hearing and a determination that it is relevant and admissible before immigration status could be introduced into evidence or made part of the court file. SB 785 is an urgency measure and is currently pending consideration before the Senate Committee on the Judiciary.

AB 291 (Chiu, 2017) would enact a suite of protections for residential tenants against the possibility of retaliation or adverse actions by landlords based on the tenant’s immigration status, including prohibitions on inquiry into immigration status during discovery or at trial absent a clear and convincing showing that such evidence is relevant to the particular case. AB 291 is currently pending consideration before the Senate Committee on the Judiciary.

Prior Legislation:

AB 2159 (Gonzalez, Chapter 132, Statutes of 2016) provided that, in civil actions for personal injury or wrongful death, evidence of a person’s immigration status is not admissible and discovery of a person’s immigration status is not permitted.

AB 560 (Gomez, Chapter 151, Statutes of 2015) provided that the immigration status of a minor child seeking recovery under any applicable law is irrelevant to the issues of liability or remedy and would prohibit discovery or other inquiry in a civil action or proceeding into a minor child’s immigration status, with specified exceptions.

SB 666 (Steinberg, Chapter 577, Statutes of 2013) established that it is cause for suspension, disbarment, or other discipline for any member of the State Bar to report suspected immigration status or threaten to report suspected immigration status of a witness or a party to a civil or administrative action or his or her family member to a federal, state, or local agency because the witness or party exercises a right related to his or her employment, broadly interpreted.

SB 1818 (Romero, Chapter 1071, Statutes of 2002) enacted the four sections of code—in the Civil, Government, Health and Safety, and Labor Codes—that are amended by this bill and which, in their current form, prohibit inquiry into immigration status at trial or during discovery absent a clear and convincing showing that the issue is relevant, in the context of labor, employment, civil rights, and employee housing cases.

Prior Vote:

Assembly Floor (Ayes 65, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

ASSEMBLY THIRD READING

ATR Bill Id:

Author:(Committee on Judiciary)

As Amended Ver:April 6, 2017

Majority vote

SUMMARY: Extends protections in existing law that prohibit inquiry into a litigant's immigration status in civil actions to enforce state labor, employment, civil rights, and employee housing laws, to actions to enforce the state's consumer protection laws. Specifically, this bill clarifies that for purposes of enforcing state consumer protection laws, a person's immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws, no inquiry shall be permitted into a person's immigration status, except where the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.

EXISTING LAW:

1. Provides that all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. (Civil Code Section 3339 (a); Government Code Section 7285 (a); Health & Safety Code Section 24000 (a); Labor Code Section 1171.5 (a).)
2. Provides that for purposes of enforcing state labor, employment, civil rights, and employee housing laws, a person's immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person's immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law. (Civil Code Section 3339 (b); Government Code Section 7285 (b); Health & Safety Code Section 24000 (b); Labor Code Section 1171.5 (b).)
3. Provides that the immigration status of a minor child seeking recovery under any applicable law is irrelevant to the issues of liability or remedy, except for employment-related prospective injunctive relief that would directly violate federal law. (Civil Code 3339.5 (a).)
4. Prohibits discovery or other inquiry in a civil action or proceeding relating to a minor child's immigration status except where the minor child's claims place the minor child's immigration status directly in contention or the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law. (Civil Code 3339.5 (b).)
5. Provides that all of the above are declarative of existing law. (Civil Code Section 3339 (c); Civil Code Section 3339.5 (c); Government Code Section 7285 (c); Health & Safety Code Section 24000 (c); Labor Code Section 1171.5 (c).)
6. Pursuant to case law, provides that the defense of unclean hands is inapplicable in statutes intended to protect consumers, including California's Immigration Consultants Act (ICA). (Mendoza v. Ruesga (2008) 169 C.A.4th 270, 279.)

FISCAL EFFECT: None

COMMENTS: This bill would clarify that the protections against inquiry into immigration status that now apply to civil actions to enforce the state's labor, employment, civil rights and employee housing laws also apply to disputes regarding consumer protection laws. According to the Chair of this Committee:

AB 1690 merely clarifies existing law that prohibits inquiry into immigration status in most civil matters to make it clear that such inquiries are also prohibited in consumer disputes. This clarification will help protect vulnerable persons seeking to enforce their consumer rights. A person's social security number is a proxy for immigration status, the inquiry about which is sometimes used to undercut the consumer's legal rights, intimidate or dissuade a person from pursuing their rights, and to chill future actions by undocumented immigrants.

This bill merely restates, codifies, and clarifies existing law. As state laws have continued to evolve in this area, some courts have furthered this public policy by holding that immigration status is irrelevant to liability issues (See, e.g., Hernández v. Paicius (2003) 109 Cal.App.4th 452, 460, holding that, in a medical malpractice action, trial court erred in not granting plaintiff's motion to exclude reference to his immigration status because evidence of such status was entirely irrelevant to liability, particularly where plaintiff was not claiming loss of future earnings.)

Nevertheless, existing law may not be sufficiently clear that information about a person's immigration status is irrelevant in actions to enforce the state's consumer protection laws. Some defendants have taken advantage of this oversight by seeking to obtain discovery about immigration status in an apparent effort to intimidate plaintiffs and discourage them from exercising their legal rights. For example, in a recent San Mateo County case, an undocumented citizen brought a consumer protection action against a Modesto used car dealer for violations of the Automobile Sales Finance Act, including failure to disclose the vehicle's history as a rental. The car dealership served written discovery on the plaintiff, asking him to admit that he did not have a social security number. He objected on relevance and privacy grounds. Ironically, prior to the consumer's action, the dealership advertised heavily on Spanish language television stations, soliciting undocumented immigrants. For example, one of the ads stated United States (U.S.) citizenship wasn't required, promising that, "Even if you only have your Consular ID we can also help you get a very good deal here." The court ruled in the plaintiff's favor, but declined to impose monetary sanctions on the defense for improper inquiry into the plaintiff's immigration status because the court felt that the law prohibiting inquiry into immigration status in a consumer protection matter was not sufficiently clear.

Amendments to four identical sections of the law are proposed by this bill. SB 1818 (Romero), Chapter 1071, Statutes of 2002, enacted the Civil Code provision that is amended and clarified in this bill. SB 1818 enacted not only Civil Code 3339, but also provisions in three other sections of code--the Government, Health and Safety and Labor Codes—that are identical to Section 3339. All four code sections, as a result, include the same legislative findings and declarations regarding the protections, rights and remedies of employees and civil litigants, regardless of immigration status, under state law and states that those declarations are declarative of existing law.

California Catholic Conference; Immigrant Legal Resource Center; Our Family Coalition; South Asian Network; Legal Aid Association of California; Public Law Center; and Public Counsel write in support of the bill, all saying substantially the same as follows:

Immigration status is a personal piece of information that warrants a strong right to privacy. Federal courts have agreed that allowing discovery into immigration status will deter plaintiffs from pursuing meritorious claims, as highlighted by Flores v. Albertsons, Inc. In this case, the defendant argued that inquiring into the plaintiff's immigration status was relevant to the action since this information could have limited their liability for back pay. . . AB 1690 will impede these types of inquiries by clarifying that California Civil Code Section 3339, which states that a person's immigration status is irrelevant to liability issues, applies to consumer protection laws in addition to the listed labor, employment, civil rights, and employee housing laws. Furthermore, this bill will also make a resounding statement: our state will protect all individuals in every aspect of the law, regardless of immigration status.

Likewise, Consumer Attorneys of California write that, "The legislature and courts alike have consistently recognized that discovery aimed at immigration status violates public policy. This bill will clarify that inquiring into a consumer's immigration status are similarly protected by our state laws."

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334 FN: 0000126

Date of Hearing: April 4, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1690

Author:(Committee on Judiciary) – As Introduced Ver:February 27, 2017

SUBJECT: PERSONAL RIGHTS: IMMIGRATION STATUS

KEY ISSUE: should protections in existing law that prohibit inquiry into immigration status in civil actions to enforce the state’s labor, employement, civil rights, and employee housing laws be clarified in order to explicitly state that the prohibition also applies to actions to enforce state consumer protection laws?

SYNOPSIS

AB 1690 would simply clarify that the protections against inquiry into immigration status that now apply to civil actions to enforce the state’s labor, employment, civil rights and employee housing laws also apply in actions to enforce the state’s consumer protection laws. Existing state law generally establishes that a person's immigration status is irrelevant to issues of civil liability, with few exceptions. For example, Civil Code Section 3339, states that a person’s immigration status is irrelevant to the issue of liability in civil actions to enforce certain public protection laws—specifically actions to enforce the state’s labor, employment, civil rights and employee housing laws—and prohibits inquiry into immigration status in court proceedings and discovery about these cases. The California Labor Code, Health and Safety Code, and Government Codes also include language that is identical to Civil Code Section 3339. Furthermore, in proceedings or discovery undertaken to enforce this broad range of state laws, Civil Code Section 3339 (and parallel provisions in the other codes) prohibits inquiry into a person’s immigration status, except where the inquiry has been shown by clear and convincing evidence to be necessary in order to comply with federal immigration law.

Existing law is not sufficiently clear that it protects information about a person’s immigration in actions to enforce the state’s consumer protection laws. Some defendants have taken advantage of this oversight by seeking to obtain discovery about immigration status in an apparent effort to intimidate plaintiffs and discourage them from exercising their legal rights. For example, in a recent San Mateo County case, an undocumented citizen brought a consumer protection action against a Modesto used car dealer for violations of the Automobile Sales Finance Act, including failure to disclose the vehicle’s history as a rental. The court ultimately ruled in the plaintiff’s favor, but declined to impose monetary sanctions on the defense for improper inquiry into the plaintiff’s immigration status because the court felt that the law prohibiting inquiry into immigration status in a consumer protection matter was not sufficiently clear. This bill would clarify that inquiry into immigration status is irrelevant to the issue of liability in actions to enforce that state’s consumer laws. This bill is supported by a number of consumer advocacy organizations, legal aid organizations, immigration support groups, Our Family Coalition, and the California Catholic Conference.

SUMMARY: Extends protections in existing law that prohibit inquiry into a litigant’s immigration status in civil actions to enforce state labor, employment, civil rights, and employee housing laws, to actions to enforce the state’s consumer protection laws. Specifically, this bill clarifies that for purposes of enforcing state consumer protection laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law.

EXISTING LAW:

1. Provides that all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. (Civil Code Section 3339 (a); Government Code Section 7285 (a); Health & Safety Code Section 24000 (a); Labor Code Section 1171.5 (a).)
2. Provides that for purposes of enforcing state labor, employment, civil rights, and employee housing laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law. (Civil Code Section 3339 (b); Government Code Section 7285 (b); Health & Safety Code Section 24000 (b); Labor Code Section 1171.5 (b).)
3. Provides that the immigration status of a minor child seeking recovery under any applicable law is irrelevant to the issues of liability or remedy, except for employment-related prospective injunctive relief that would directly violate federal law. (Civil Code 3339.5 (a).)
4. Prohibits discovery or other inquiry in a civil action or proceeding relating to a minor child’s immigration status except where the minor child’s claims place the minor child’s immigration status directly in contention or the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law. (Civil Code 3339.5 (b).)
5. Provides that all of the above are declarative of existing law. (Civil Code Section 3339 (c); Civil Code Section 3339.5 (c); Government Code Section 7285 (c); Health & Safety Code Section 24000 (c); Labor Code Section 1171.5 (c).)
6. Pursuant to case law, provides that the defense of unclean hands is inapplicable in statutes intended to protect consumers, including California’s Immigration Consultants Act (ICA). (Mendoza v. Ruesga (2008) 169 C.A.4th 270, 279.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: This bill would clarify that the protections against inquiry into immigration status that now apply to civil actions to enforce the state’s labor, employment, civil rights and employee housing laws also apply to disputes regarding consumer protection laws. According to the Chair of this Committee:

AB 1690 merely clarifies existing law that prohibits inquiry into immigration status in most civil matters to make it clear that such inquiries are also prohibited in consumer disputes. This clarification will help protect vulnerable persons seeking to enforce their consumer rights. A person’s social security number is a proxy for immigration status, the inquiry about which is sometimes used to undercut the consumer's legal rights, intimidate or dissuade a person from pursuing their rights, and to chill future actions by undocumented immigrants.

Background on immigration status with respect to liability issues under existing law. Existing state law generally establishes that a person's immigration status is irrelevant to issues of civil liability, with few exceptions. For example, Civil Code Section 3339, states that a person’s immigration status is irrelevant to the issue of liability in civil actions to enforce certain public protection laws—specifically actions to enforce the state’s labor, employment, civil rights and employee housing laws—and prohibits inquiry into immigration status in court proceedings and discovery about these cases. The California Labor Code, Health and Safety Code, and Government Codes also include language that is identical to Civil Code Section 3339. Furthermore, in proceedings or discovery undertaken to enforce this broad range of state laws, Civil Code Section 3339 (and parallel provisions in the other codes) prohibits inquiry into a person’s immigration status, except where the inquiry has been shown by clear and convincing evidence to be necessary in order to comply with federal immigration law.

Discovery into immigration status disfavored: Just last year, in order to provide fair and just compensation for undocumented immigrants who are injured through no fault of their own, AB 2159 (Gonzalez) was enacted to provide that in civil actions for personal injury or wrongful death, evidence of a person’s immigration status is not admissible and discovery of a person’s immigration status is not permitted. AB 2159 earned overwhelming support and was signed into law, underscoring that discovery and evidence relating to immigration status in civil actions is against state public policy. Similarly, state law prohibits inquiry into the immigration status of a minor child who is seeking recovery under any applicable law and makes evidence of immigration status irrelevant to the issues of liability or remedy, except for employment-related prospective injunctive relief that would directly violate federal law. (Civil Code Section 3339.5.)

This bill merely restates, codifies, and clarifies existing law. As state laws have continued to evolve in this area, some courts have furthered this public policy by holding that immigration status is irrelevant to liability issues (See, e.g., Hernández v. Paicius (2003) 109 Cal.App.4^th 452, 460, holding that, in a medical malpractice action, trial court erred in not granting plaintiff's motion to exclude reference to his immigration status because evidence of such status was entirely irrelevant to liability, particularly where plaintiff was not claiming loss of future earnings.)

Likewise, the case of Mendoza v. Ruesga (2008) 169 C.A.4th 270 examined whether the defense of unclean hands could be used to defeat plaintiffs’ claims under California’s Immigration Consultants Act (ICA). In that case, the plaintiffs hired the defendant immigration consultant to help them apply for amnesty, and later filed suit against the defendant when it became clear that they had been misled by the consultant about the likelihood that their applications would be successful. Defendant responded by alleging that the plaintiffs had unclean hands “because [plaintiffs] knew they were unqualified for amnesty, . . . [and]. . . signed applications falsely stating [their arrival dates in the U.S.], and . . . insisted that Ruesga provide . . .fraudulent evidence . . .” (Id. at 277.) The appellate court held that the unclean hands defense, which had been successful at trial, was inapplicable in disputes about the ICA for public policy reasons, including the fact that “[a]pplication of the doctrine would allow unscrupulous immigration consultants to go unpunished and undermine the protective purposes of the legislation.” (Id. at 282.) But the court made clear that that its holding was not limited to cases brought under the ICA:

Plaintiffs contend that as a matter of law the unclean hands doctrine is inapplicable to their cause of action under the ICA because it is based on [defendant’s] violation of statutes intended to protect consumers. [Footnote omitted] We agree with plaintiffs. (Emphasis added to original). (Id. at 279.)

Nevertheless, existing law may not be sufficiently clear that information about a person’s immigration status is irrelevant in actions to enforce the state’s consumer protection laws. Some defendants have taken advantage of this oversight by seeking to obtain discovery about immigration status in an apparent effort to intimidate plaintiffs and discourage them from exercising their legal rights. For example, in a recent San Mateo County case, an undocumented citizen brought a consumer protection action against a Modesto used car dealer for violations of the Automobile Sales Finance Act, including failure to disclose the vehicle’s history as a rental. The car dealership served written discovery on the plaintiff, asking him to admit that he did not have a social security number. He objected on relevance and privacy grounds. Ironically, prior to the consumer’s action, the dealership advertised heavily on Spanish language television stations, soliciting undocumented immigrants. For example, one of the ads stated U.S. citizenship wasn't required, promising that, "Even if you only have your Consular ID we can also help you get a very good deal here.” The court ruled in the plaintiff’s favor, but declined to impose monetary sanctions on the defense for improper inquiry into the plaintiff’s immigration status because the court felt that the law prohibiting inquiry into immigration status in a consumer protection matter was not sufficiently clear.

Amendments to make other sections of the law, now identical to Civil Code Section 3339, parallel to the changes in Section 3339 that are proposed by this bill. SB 1818 (Romero), Chapter 1071, Statutes of 2002, enacted the Civil Code provision that is amended and clarified in this bill. SB 1818 enacted not only Civil Code 3339, but also provisions in three other sections of code--the Government, Health and Safety and Labor Codes—that are identical to Section 3339. All four code sections, as a result, include the same legislative findings and declarations regarding the protections, rights and remedies of employees and civil litigants, regardless of immigration status, under state law and states that those declarations are declarative of existing law.

As currently in print, this bill only amends the Civil Code. In order for the amended language that this bill, as now in print, proposes to make to the Civil Code remains identical to the language in the other three code sections, the author has agreed to add the same language to Section 7285 of the Government Code; Section 24000 of the Health and Safety Code; and Section 1171.5 of the Labor Code.

(b) For purposes of enforcing state labor, employment, civil rights, consumer protection, and employee housing laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law.

ARGUMENTS IN SUPPORT: California Catholic Conference; Immigrant Legal Resource Center; Our Family Coalition; South Asian Network; Legal Aid Association of California; Public Law Center; and Public Counsel write in support of the bill, all saying substantially the same as follows:

Immigration status is a personal piece of information that warrants a strong right to privacy. Federal courts have agreed that allowing discovery into immigration status will deter plaintiffs from pursuing meritorious claims, as highlighted by Flores v. Albertsons, Inc. In this case, the defendant argued that inquiring into the plaintiff’s immigration status was relevant to the action since this information could have limited their liability for back pay. . . AB 1690 will impede these types of inquiries by clarifying that California Civil Code §3339, which states that a person’s immigration status is irrelevant to liability issues, applies to consumer protection laws in addition to the listed labor, employment, civil rights, and employee housing laws. Furthermore, this bill will also make a resounding statement: our state will protect all individuals in every aspect of the law, regardless of immigration status.

Likewise, Consumer Attorneys of California write that, “The legislature and courts alike have consistently recognized that discovery aimed at immigration status violates public policy. This bill will clarify that inquiring into a consumer’s immigration status are similarly protected by our state laws.”

REGISTERED SUPPORT / OPPOSITION:

Support

California Catholic Conference

Consumer Attorneys of California

Consumers for Auto Reliability and Safety

East Bay Community Law Center

Immigrant Legal Resource Center

Law Foundation of Silicon Valley

Legal Aid Association of California

Housing and Economic Rights Advocates

Public Counsel

Public Law Center

Our Family Coalition

South Asian Network

Opposition

None on file

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334