Can an undocumented immigrant recover damages in a personal injury action in California?

Yes. If you are here illegally and are injured as a result of someone’s fault, you have similar rights as a United States citizen or a lawful resident to bring a personal injury action and seek damages under California law. While there were some limitations on recovery of damages by undocumented immigrants, both the courts and legislature recently removed those limitations.

A typical personal injury action in California includes several types of damages: 1) medical bills for past treatment; 2) medical bills for future expected treatment; 3) past lost wages; 4) future lost wages or loss of earning capacity; and 5) past and future pain and suffering.

Until recently, a jury could learn that a plaintiff in a personal injury action was an undocumented immigrant if that plaintiff was seeking damages for future lost earnings and lost earning capacity. The immigration status was not admissible into evidence if Plaintiff was only seeking damages for past medical bills or past and future pain and suffering. There was also a dispute as to whether an undocumented immigrant could seek damages for future treatment based on the costs of such treatment in the United States.

However, the courts and legislature recently removed these limitations. First, in Velasquez v. Centrome, Inc. (2015) 233 Cal. App. 4th 1191, the California Court of Appeal held that the plaintiff’s immigration status was irrelevant to the issue of whether he would be eligible to receive future medical treatment. The Court of Appeal explained that where the plaintiff is seeking damages for a future medical procedure, and there is no evidence that the plaintiff’s immigration status will be considered in determining eligibility for that procedure, the plaintiff’s immigration status is inadmissible. Accordingly, the Court of Appeal reversed the trial court’s decision and remanded the matter for a new trial directing the trial court to exclude the evidence of plaintiff’s immigration status.

The Velasquez decision stood for the proposition that where the prejudicial effect resulting from the admission of a person’s immigration status outweighs the probative value, such evidence should be excluded under Evidence Code section 352. The only exception was where the undocumented status would render an immigrant ineligible for future medical treatment not just in the United States, but in any other country.

Shortly after Velasquez, the California Legislature simplified the issue by enacting a law that bars evidence of a person’s immigration status in personal injury actions regardless of whether such evidence is relevant to a determination of future medical eligibility. See Evid. Code § 351.2. On August 17, 2016, the California Legislature added Section 351.2 to the California Evidence Code. Subsection (a) of Section 351.2, which became effective on January 1, 2017, renders a person’s immigration status inadmissible and undiscoverable in all civil actions for personal injury or wrongful death. Thus, because Section 351.2(a) broadly declares that immigration status is never admissible in a personal injury action, the California Legislature effectively extended the Velasquez rule to apply in all personal injury cases, even where the plaintiff is claiming future lost earnings and loss of earning capacity, or where the plaintiff’s

eligibility for a future medical procedure will be impacted by the plaintiff’s undocumented status.

In short, non-citizens and citizens alike can recover similar damages in personal injury actions. Undocumented immigrants can bring suit for injuries they have suffered without worrying that their immigration status will be revealed during the course of the lawsuit. Therefore, if you are an undocumented immigrant who has suffered personal injuries as a result of a car accident, dog bite, dangerous product, or other circumstances due to someone’s fault, your alienage status should not deter you from seeking compensation for your injuries.