AB 1521: Disability access: construction-related accessibility claims.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2015-10-10
Existing law provides that individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, public facilities, and other public places, and allows a person who is aggrieved or potentially aggrieved by a violation of specific provisions of law to bring an action to enjoin the violation. Existing law requires an attorney to provide a written advisory with each demand letter or complaint, as defined, sent to or served upon a defendant or potential defendant for any construction-related accessibility claim, as specified.
This bill would require the above-described advisory to include additional information regarding the rights and obligations of business owners and commercial tenants, as specified. In addition to the written advisory, the bill would require an attorney to provide a defendant or potential defendant of a construction-related accessibility claim with a verified answer form developed by the Judicial Council, which would allow a defendant to respond in the event a complaint is filed, as specified. The bill would, on or before July 1, 2016, require the Judicial Council to update the advisory form and adopt the answer form, as specified.
Existing law requires a demand letter alleging a violation of a construction-related accessibility standard or asserting a construction-related accessibility claim to include specified information and, among other things, until January 1, 2016, requires an attorney who provides a demand letter to send a copy of the demand letter to the State Bar of California.
This bill would extend that requirement until January 1, 2019.
Existing law requires an attorney who sends or serves a complaint on the basis of a construction-related accessibility claim to also send a copy of the complaint to the California Commission on Disability Access.
This bill would additionally require the attorney to notify the commission within 5 business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of specified information, including, among others, whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter.
Existing law requires every pleading, petition, or other similar paper to be signed by an attorney, or the party in cases where the party is not represented by counsel, as specified. Existing law further provides that an attorney or unrepresented party who presents a pleading, petition, or other similar paper to the court is certifying that specified conditions have been met, including, but not limited to, that the action is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay.
This bill would specify that those requirements and provisions apply to a complaint alleging a construction-related accessibility claim.
Existing law authorizes a defendant to file a request for a court stay and an early evaluation conference in the proceedings under certain circumstances, and tolls the period for responsive pleadings.
This bill would specify that these provisions also apply if a defendant is a business that has been served with a complaint filed by a high-frequency litigant, as defined, or is a business requesting an early evaluation conference.
Existing law, upon the filing of an application for a court stay and an early evaluation conference by a defendant, requires the court to immediately issue an order that does certain things, including, but not limited to, scheduling a mandatory early evaluation conference for a date as soon as possible from the date of the order, but in no event later than 70 days after the issuance of the order.
This bill would, if requested by the defendant, additionally require the court order to direct the parties and their counsel to meet at the premises, or other place as specified, no later than 30 days after issuance of the court order, to jointly inspect the premises, and review any programmatic or policy issues, that are claimed to constitute a violation of a construction-related accessibility standard. The bill would authorize the court to allow a plaintiff who is unable to meet in person at the premises to be excused from participation, or participate by alternative means, for good cause and would provide that a plaintiff or plaintiffs counsel is not required to attend more than one in-person site meeting.
Existing law requires a complaint alleging a construction-related accessibility claim to be verified by the plaintiff or be subject to a motion to strike, and further requires that an allegation of a construction-related accessibility claim in a complaint state facts sufficient to allow a reasonable person to identify the basis of the violation, including, but not limited to, a plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred.
This bill would, for cases filed by or on behalf of a high-frequency litigant, require the complaint to also state whether the complaint is filed by, or on behalf of, a high-frequency litigant, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint, and the reason why the individual visited the place of public accommodation. By expanding the definition of the crime of perjury, this bill would impose a state-mandated local program.
Existing law imposes a supplemental fee for filing first papers in certain civil proceedings, including, but not limited to, certain complex cases.
This bill would, in addition to the first paper filing fee, require payment of a single high-frequency litigant fee of $1,000, at the time of the filing of the first paper if the complaint alleges a construction-related accessibility claim and the plaintiff is a high-frequency litigant, and would make conforming changes related to the distribution of those fees.
Existing constitutional provisions require a statute that limits the right of public access to meeting or writings of public officials to be adopted with findings demonstrating the interest to be protected by that limitation and the need to protect that interest.
This bill would declare that it includes limitations on access, that the interests to be protected are the privacy rights of the litigants, and that the need to protect those interests is to prevent a chilling effect on litigation.
This bill would also make other conforming changes.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
This bill would declare that it is to take effect immediately as an urgency statute.
Existing law provides that individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, public facilities, and other public places, and allows a person who is aggrieved or potentially aggrieved by a violation of specific provisions of law to bring an action to enjoin the violation. Existing law requires an attorney to provide a written advisory with each demand letter or complaint, as defined, sent to or served upon a defendant or potential defendant for any construction-related accessibility claim, as specified.
This bill would require the above-described advisory to include additional information regarding the rights and obligations of business owners and commercial tenants, as specified. In addition to the written advisory, the bill would require an attorney to provide a defendant or potential defendant of a construction-related accessibility claim with a verified answer form developed by the Judicial Council, which would allow a defendant to respond in the event a complaint is filed, as specified. The bill would, on or before July 1, 2016, require the Judicial Council to update the advisory form and adopt the answer form, as specified.
Existing law requires a demand letter alleging a violation of a construction-related accessibility standard or asserting a construction-related accessibility claim to include specified information and, among other things, until January 1, 2016, requires an attorney who provides a demand letter to send a copy of the demand letter to the State Bar of California.
This bill would extend that requirement until January 1, 2019.
Existing law requires an attorney who sends or serves a complaint on the basis of a construction-related accessibility claim to also send a copy of the complaint to the California Commission on Disability Access.
This bill would additionally require the attorney to notify the commission within 5 business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of specified information, including, among others, whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter.
Existing law requires every pleading, petition, or other similar paper to be signed by an attorney, or the party in cases where the party is not represented by counsel, as specified. Existing law further provides that an attorney or unrepresented party who presents a pleading, petition, or other similar paper to the court is certifying that specified conditions have been met, including, but not limited to, that the action is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay.
This bill would specify that those requirements and provisions apply to a complaint alleging a construction-related accessibility claim.
Existing law authorizes a defendant to file a request for a court stay and an early evaluation conference in the proceedings under certain circumstances, and tolls the period for responsive pleadings.
This bill would specify that these provisions also apply if a defendant is a business that has been served with a complaint filed by a high-frequency litigant, as defined, or is a business requesting an early evaluation conference.
Existing law, upon the filing of an application for a court stay and an early evaluation conference by a defendant, requires the court to immediately issue an order that does certain things, including, but not limited to, scheduling a mandatory early evaluation conference for a date as soon as possible from the date of the order, but in no event later than 70 days after the issuance of the order.
This bill would, if requested by the defendant, additionally require the court order to direct the parties and their counsel to meet at the premises, or other place as specified, no later than 30 days after issuance of the court order, to jointly inspect the premises, and review any programmatic or policy issues, that are claimed to constitute a violation of a construction-related accessibility standard. The bill would authorize the court to allow a plaintiff who is unable to meet in person at the premises to be excused from participation, or participate by alternative means, for good cause and would provide that a plaintiff or plaintiffs counsel is not required to attend more than one in-person site meeting.
Existing law requires a complaint alleging a construction-related accessibility claim to be verified by the plaintiff or be subject to a motion to strike, and further requires that an allegation of a construction-related accessibility claim in a complaint state facts sufficient to allow a reasonable person to identify the basis of the violation, including, but not limited to, a plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred.
This bill would, for cases filed by or on behalf of a high-frequency litigant, require the complaint to also state whether the complaint is filed by, or on behalf of, a high-frequency litigant, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint, and the reason why the individual visited the place of public accommodation. By expanding the definition of the crime of perjury, this bill would impose a state-mandated local program.
Existing law imposes a supplemental fee for filing first papers in certain civil proceedings, including, but not limited to, certain complex cases.
This bill would, in addition to the first paper filing fee, require payment of a single high-frequency litigant fee of $1,000, at the time of the filing of the first paper if the complaint alleges a construction-related accessibility claim and the plaintiff is a high-frequency litigant, and would make conforming changes related to the distribution of those fees.
Existing constitutional provisions require a statute that limits the right of public access to meeting or writings of public officials to be adopted with findings demonstrating the interest to be protected by that limitation and the need to protect that interest.
This bill would declare that it includes limitations on access, that the interests to be protected are the privacy rights of the litigants, and that the need to protect those interests is to prevent a chilling effect on litigation.
This bill would also make other conforming changes.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
This bill would declare that it is to take effect immediately as an urgency statute.
Existing law provides that individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, public facilities, and other public places, and allows a person who is aggrieved or potentially aggrieved by a violation of specific provisions of law to bring an action to enjoin the violation. Existing law requires an attorney to provide a written advisory with each demand letter or complaint, as defined, sent to or served upon a defendant or potential defendant for any construction-related accessibility claim, as specified.
This bill would require the above-described advisory to include additional information regarding the rights and obligations of business owners and commercial tenants, as specified. In addition to the written advisory, the bill would require an attorney to provide a defendant or potential defendant of a construction-related accessibility claim with a verified answer form developed by the Judicial Council, which would allow a defendant to respond in the event a complaint is filed, as specified. The bill would, on or before July 1, 2016, require the Judicial Council to update the advisory form and adopt the answer form, as specified.
Existing law requires a demand letter alleging a violation of a construction-related accessibility standard or asserting a construction-related accessibility claim to include specified information and, among other things, until January 1, 2016, requires an attorney who provides a demand letter to send a copy of the demand letter to the State Bar of California.
This bill would extend that requirement until January 1, 2019.
Existing law requires an attorney who sends or serves a complaint on the basis of a construction-related accessibility claim to also send a copy of the complaint to the California Commission on Disability Access.
This bill would additionally require the attorney to notify the commission within 5 business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of specified information, including, among others, whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter.
Existing law requires every pleading, petition, or other similar paper to be signed by an attorney, or the party in cases where the party is not represented by counsel, as specified. Existing law further provides that an attorney or unrepresented party who presents a pleading, petition, or other similar paper to the court is certifying that specified conditions have been met, including, but not limited to, that the action is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay.
This bill would specify that those requirements and provisions apply to a complaint alleging a construction-related accessibility claim.
Existing law authorizes a defendant to file a request for a court stay and an early evaluation conference in the proceedings under certain circumstances, and tolls the period for responsive pleadings.
This bill would specify that these provisions also apply if a defendant is a business that has been served with a complaint filed by a high-frequency litigant, as defined, or is a business requesting an early evaluation conference.
Existing law, upon the filing of an application for a court stay and an early evaluation conference by a defendant, requires the court to immediately issue an order that does certain things, including, but not limited to, scheduling a mandatory early evaluation conference for a date as soon as possible from the date of the order, but in no event later than 70 days after the issuance of the order.
This bill would, if requested by the defendant, additionally require the court order to direct the parties and their counsel to meet at the premises, or other place as specified, no later than 30 days after issuance of the court order, to jointly inspect the premises, and review any programmatic or policy issues, that are claimed to constitute a violation of a construction-related accessibility standard. The bill would authorize the court to allow a plaintiff who is unable to meet in person at the premises to be excused from participation, or participate by alternative means, for good cause and would provide that a plaintiff or plaintiffs counsel is not required to attend more than one in-person site meeting.
Existing law requires a complaint alleging a construction-related accessibility claim to be verified by the plaintiff or be subject to a motion to strike, and further requires that an allegation of a construction-related accessibility claim in a complaint state facts sufficient to allow a reasonable person to identify the basis of the violation, including, but not limited to, a plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred.
This bill would, for cases filed by or on behalf of a high-frequency litigant, require the complaint to also state whether the complaint is filed by, or on behalf of, a high-frequency litigant, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint, and the reason why the individual visited the place of public accommodation. By expanding the definition of the crime of perjury, this bill would impose a state-mandated local program.
Existing law imposes a supplemental fee for filing first papers in certain civil proceedings, including, but not limited to, certain complex cases.
This bill would, in addition to the first paper filing fee, require payment of a single high-frequency litigant fee of $1,000, at the time of the filing of the first paper if the complaint alleges a construction-related accessibility claim and the plaintiff is a high-frequency litigant, and would make conforming changes related to the distribution of those fees.
Existing constitutional provisions require a statute that limits the right of public access to meeting or writings of public officials to be adopted with findings demonstrating the interest to be protected by that limitation and the need to protect that interest.
This bill would declare that it includes limitations on access, that the interests to be protected are the privacy rights of the litigants, and that the need to protect those interests is to prevent a chilling effect on litigation.
This bill would also make other conforming changes.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
This bill would declare that it is to take effect immediately as an urgency statute.
Existing law provides that individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, public facilities, and other public places, and allows a person who is aggrieved or potentially aggrieved by a violation of specific provisions of law to bring an action to enjoin the violation. Existing law requires an attorney to provide a written advisory with each demand letter or complaint, as defined, sent to or served upon a defendant or potential defendant for any construction-related accessibility claim, as specified.
This bill would require the above-described advisory to include additional information regarding the rights and obligations of business owners and commercial tenants, as specified. In addition to the written advisory, the bill would require an attorney to provide a defendant or potential defendant of a construction-related accessibility claim with an a verified answer form developed by the Judicial Council, which would allow a defendant to respond in the event a complaint is filed, as specified. The bill would, on or before July 1, 2016, require the Judicial Council to update the advisory form and adopt the answer form, as specified.
Existing law authorizes commencement of an action for damages against persons who interfere with these access rights, including, but not limited to, actions against owners and tenants of property for construction-related barriers.
This bill would, with certain exceptions, require the owner of property to which the general public is invited to indemnify a microbusiness tenant, as defined, from liability arising from any construction-related accessibility claims, as specified.
Existing law requires a demand letter alleging a violation of a construction-related accessibility standard or asserting a construction-related accessibility claim to include specified information and, among other things, until January 1, 2016, requires an attorney who provides a demand letter to send a copy of the demand letter to the State Bar of California.
This bill would extend that requirement until January 1, 2019.
Existing law requires an attorney who sends or serves a complaint on the basis of a construction-related accessibility claim to also send a copy of the complaint to the California Commission on Disability Access.
This bill would additionally require the attorney to notify the commission within 5 business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of specified information, including, among others, whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter.
Existing law requires every pleading, petition, or other similar paper to be signed by an attorney, or the party in cases where the party is not represented by counsel, as specified. Existing law further provides that an attorney or unrepresented party who presents a pleading, petition, or other similar paper to the court is certifying that specified conditions have been met, including, but not limited to, that the action is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay.
This bill would specify that those requirements and provisions apply to a complaint alleging a construction-related accessibility claim.
Existing law authorizes a defendant to file a request for a court stay and an early evaluation conference in the proceedings under certain circumstances, and tolls the period for responsive pleadings.
This bill would specify that these provisions also apply if a defendant is a business that has been served with a complaint filed by a high-frequency litigant, as defined, or is a business requesting an early evaluation conference.
Existing law, upon the filing of an application for a court stay and an early evaluation conference by a defendant, requires the court to immediately issue an order that does certain things, including, but not limited to, scheduling a mandatory early evaluation conference for a date as soon as possible from the date of the order, but in no event later than 70 days after the issuance of the order.
This bill would, if requested by the defendant, additionally require the court order to direct the parties and their counsel to meet at the premises, or other place as specified, no later than 30 days after issuance of the court order, to jointly inspect the premises, and review any programmatic or policy issues, that are claimed to constitute a violation of a construction-related accessibility standard. The bill would authorize the court to allow a plaintiff who is unable to meet in person at the premises to be excused from participation, or participate by alternative means, for good cause and would provide that a plaintiff or plaintiffs counsel is not required to attend more than one in-person site meeting.
Existing law requires a complaint alleging a construction-related accessibility claim to be verified by the plaintiff or be subject to a motion to strike, and further requires that an allegation of a construction-related accessibility claim in a complaint state facts sufficient to allow a reasonable person to identify the basis of the violation, including, but not limited to, a plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred.
This bill would, for cases filed by or on behalf of a high-frequency litigant, require the complaint to also state that whether the complaint is filed by, or on behalf of, a high-frequency litigant, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint, and the reason why the individual visited the place of public accommodation. By expanding the definition of the crime of perjury, this bill would impose a state-mandated local program.
Existing law imposes a supplemental fee for filing first papers in certain civil proceedings, including, but not limited to, certain complex cases.
This bill would, in addition to the first paper filing fee, require payment of a single high-frequency litigant fee of $1,000, at the time of the filing of the first paper if the complaint alleges a construction-related accessibility claim and the plaintiff is a high-frequency litigant, and would make conforming changes related to the distribution of those fees.
Existing constitutional provisions require a statute that limits the right of public access to meeting or writings of public officials to be adopted with findings demonstrating the interest to be protected by that limitation and the need to protect that interest.
This bill would declare that it includes limitations on access, that the interests to be protected are the privacy rights of the litigants, and that the need to protect those interests is to prevent a chilling effect on litigation.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
This bill would declare that it is to take effect immediately as an urgency statute.
Existing law provides that individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, public facilities, and other public places, and allows a person who is aggrieved or potentially aggrieved by a violation of specific provisions of law to bring an action to enjoin the violation. Existing law requires an attorney to provide a written advisory with each demand letter or complaint, as defined, sent to or served upon a defendant or potential defendant for any construction-related accessibility claim, as specified.
This bill would require the above-described advisory to include additional information regarding the rights and obligations of business owners and commercial tenants, as specified. In addition to the written advisory, the bill would require an attorney to provide a defendant or potential defendant of a construction-related accessibility claim with an answer form developed by the Judicial Council, which would allow a defendant to respond in the event a complaint is filed, as specified. The bill would, on or before July 1, 2016, require the Judicial Council to update the advisory form and adopt the answer form, as specified.
Existing law authorizes commencement of an action for damages against persons who interfere with these access rights, including, but not limited to, actions against owners and tenants of property for construction-related barriers.
This bill would, with certain exceptions, require the owner of property to which the general public is invited to indemnify a microbusiness tenant, as defined, from liability arising from any construction-related accessibility claims, as specified.
Existing law requires every pleading, petition, or other similar paper to be signed by an attorney, or the party in cases where the party is not represented by counsel, as specified. Existing law further provides that an attorney or unrepresented party who presents a pleading, petition, or other similar paper to the court is certifying that specified conditions have been met, including, but not limited to, that the action is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay.
This bill would require that the attorney, or the party in cases where the party is not represented by counsel, certify that specified conditions have been met, including, but not limited to, that the action is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay. By expanding the definition of the crime of perjury, this bill would impose a state-mandated local program. specify that those requirements and provisions apply to a complaint alleging a construction-related accessibility claim.
Existing law authorizes a defendant to file a request for a court stay and an early evaluation conference in the proceedings under certain circumstances, and tolls the period for responsive pleadings.
This bill would specify that these provisions also apply if a defendant is a business that has been served with a complaint filed by a high-frequency litigant, as defined, or is a business requesting an early evaluation conference.
Existing law, upon the filing of an application for a court stay and an early evaluation conference by a defendant, requires the court to immediately issue an order that does certain things, including, but not limited to, scheduling a mandatory early evaluation conference for a date as soon as possible from the date of the order, but in no event later than 70 days after the issuance of the order.
This bill would, if requested by the defendant, additionally require the court order to direct the parties and their counsel to meet at the premises, or other place as specified, no later than 30 days after issuance of the court order, to jointly inspect the premises, and review any programmatic or policy issues, that are claimed to constitute a violation of a construction-related accessibility standard. The bill would authorize the court to allow a plaintiff who is unable to meet in person at the premises to be excused from participation, or participate by alternative means, for good cause and would provide that a plaintiff or plaintiffs counsel is not required to attend more than one in-person site meeting.
Existing law requires a complaint alleging a construction-related accessibility claim to be verified by the plaintiff or be subject to a motion to strike, and further requires that an allegation of a construction-related accessibility claim in a complaint state facts sufficient to allow a reasonable person to identify the basis of the violation, including, but not limited to, a plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred.
This bill would, for cases filed by or on behalf of a high-frequency litigant, require the complaint to also state that the complaint is filed by, or on behalf of, a high-frequency litigant, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint, and the reason why the individual visited the place of public accommodation. By expanding the definition of the crime of perjury, this bill would impose a state-mandated local program.
Existing law imposes a supplemental fee for filing first papers in certain civil proceedings, including, but not limited to, certain complex cases.
This bill would, in addition to the first paper filing fee, require payment of a single high-frequency litigant fee at an amount established by the Judicial Council, not to exceed of $1,000, at the time of the filing of the first paper if the complaint alleges a construction-related accessibility claim and the plaintiff is a high-frequency litigant, and would make conforming changes related to the distribution of those fees.
Existing Constitutional constitutional provisions require a statute that limits the right of public access to meeting or writings of public officials to be adopted with findings demonstrating the interested interest to be protected by that limitation and the need to protect that interest.
This bill would declare that it includes limitations on access, that the interests to be protected are the privacy rights of the litigants, and that the need to protect those interests is to prevent a chilling effect on litigation.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
This bill would declare that it is to take effect immediately as an urgency statute.
Existing law provides that individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, public facilities, and other public places, and allows a person who is aggrieved or potentially aggrieved by a violation of specific provisions of law to bring an action to enjoin the violation. Existing law requires an attorney to provide a written advisory with each demand letter or complaint, as defined, sent to or served upon a defendant or potential defendant for any construction-related accessibility claim, as specified.
This bill would require the above-described advisory to include additional information regarding the rights and obligations of business owners and commercial tenants, as specified. In addition to the written advisory, the bill would require an attorney to provide a defendant or potential defendant of a construction-related accessibility claim with an answer form developed by the Judicial Council, which would allow a defendant to respond in the event a complaint is filed, as specified. The bill would, on or before July 1, 2016, require the Judicial Council to update the advisory form and adopt the answer form, as specified.
Existing law authorizes commencement of an action for damages against persons who interfere with these access rights, including, but not limited to, actions against owners and tenants of property for construction-related barriers.
This bill would, with certain exceptions, require the owner of property to which the general public is invited to indemnify a microbusiness tenant, as defined, from liability arising from any construction-related accessibility claims, as specified.
This bill would require that the attorney, or the party in cases where the party is not represented by counsel, certify that specified conditions have been met, including, but not limited to, that the action is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay. By expanding the definition of the crime of perjury, this bill would impose a state-mandated local program.
Existing law entitles the prevailing party to recover reasonable attorneys fees.
This bill would, instead, require the court to award costs and reasonable attorneys fees to a prevailing plaintiff, and to award court costs and reasonable attorneys fees to the defendant if the court finds that the plaintiffs case is clearly frivolous.
This bill would, with certain exceptions, require a person who is represented by an attorney and has filed more than 15 lawsuits that allege construction-related accessibility violations against places of public accommodation within the prior 12 month-period, to seek and obtain approval of the court with respect to settlement of the case.
Existing law authorizes a defendant to file a request for a court stay and an early evaluation conference in the proceedings under certain circumstances, and tolls the period for responsive pleadings.
This bill would specify that these provisions also apply if a defendant is a business that has been served with a complaint filed by a high-frequency litigant, as defined, or is a business requesting an early evaluation conference.
Existing law, upon the filing of an application for a court stay and an early evaluation conference by a defendant, requires the court to immediately issue an order that does certain things, including, but not limited to, scheduling a mandatory early evaluation conference for a date as soon as possible from the date of the order, but in no event later than 70 days after the issuance of the order.
This bill would, if requested by the defendant, require the court order to direct the parties and their counsel to meet at the premises, or other place as specified, no later than 30 days after issuance of the court order, to jointly inspect the premises, and review any programmatic or policy issues, that are claimed to constitute a violation of a construction-related accessibility standard.
Existing law requires that an allegation of a construction-related accessibility claim in a complaint state facts sufficient to allow a reasonable person to identify the basis of the violation, including, but not limited to, a plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred.
This bill would, for cases filed by or on behalf of a high-frequency litigant, require the complaint to also state that the complaint is filed by, or on behalf of, a high-frequency litigant, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint, and the reason why the individual visited the place of public accommodation.
This bill would become operative only if Senate Bill 251 of the 2015-16 Legislative Session, relating to disability access, is enacted on or before January 1, 2016.
Existing law imposes a supplemental fee for filing first papers in certain civil proceedings, including, but not limited to, certain complex cases.
This bill would, in addition to the first paper filing fee, require payment of a single high-frequency litigant fee at an amount established by the Judicial Council, not to exceed $1,000, at the time of the filing of the first paper if the complaint alleges a construction-related accessibility claim and the plaintiff is a high-frequency litigant, and would make conforming changes related to the distribution of those fees.
Existing Constitutional provisions require a statute that limits the right of public access to meeting or writings of public officials to be adopted with findings demonstrating the interested to be protected by that limitation and the need to protect that interest.
This bill would declare that it includes limitations on access, that the interests to be protected are the privacy rights of the litigants, and that the need to protect those interests is to prevent a chilling effect on litigation.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
This bill would declare that it is to take effect immediately as an urgency statute.
Existing law provides that individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, public facilities, and other public places, and allows a person who is aggrieved or potentially aggrieved by a violation of specific provisions of law to bring an action to enjoin the violation. Existing law requires an attorney to provide a written advisory with each demand letter or complaint, as defined, sent to or served upon a defendant or potential defendant for any construction-related accessibility claim, as specified.
This bill would require the above-described advisory to include additional information regarding the rights and obligations of business owners and commercial tenants, as specified. In addition to the written advisory, the bill would require an attorney to provide a defendant or potential defendant of a construction-related accessibility claim with an answer form developed by the Judicial Council, which would allow a defendant to respond in the event a complaint is filed, as specified. The bill would, on or before July 1, 2016, require the Judicial Council to update the advisory form and adopt the answer form, as specified.
Existing law authorizes commencement of an action for damages against persons who interfere with these access rights, including, but not limited to, actions against owners and tenants of property for construction-related barriers.
This bill would, with certain exceptions, require the owner of property to which the general public is invited to indemnify a microbusiness tenant, as defined, from liability arising from any construction-related accessibility claims, as specified.
This bill would require that the attorney, or the party in cases where the party is not represented by counsel, certify that specified conditions have been met, including, but not limited to, that the action is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay. By expanding the definition of the crime of perjury, this bill would impose a state-mandated local program.
Existing law entitles the prevailing party to recover reasonable attorneys fees.
This bill would, instead, require the court to award costs and reasonable attorneys fees to a prevailing plaintiff, and to award court costs and reasonable attorneys fees to the defendant if the court finds that the plaintiffs case is clearly frivolous.
This bill would, with certain exceptions, require a person who is represented by an attorney and has filed more than 15 lawsuits that allege construction-related accessibility violations against places of public accommodation within the prior 12 month-period, to seek and obtain approval of the court with respect to settlement of the case.
Existing law authorizes a defendant to file a request for a court stay and an early evaluation conference in the proceedings under certain circumstances, and tolls the period for responsive pleadings.
This bill would specify that these provisions also apply if a defendant is a business that has been served with a complaint filed by a high-frequency litigant, as defined, or is a business requesting an early evaluation conference.
Existing law, upon the filing of an application for a court stay and an early evaluation conference by a defendant, requires the court to immediately issue an order that does certain things, including, but not limited to, scheduling a mandatory early evaluation conference for a date as soon as possible from the date of the order, but in no event later than 70 days after the issuance of the order.
This bill would, if requested by the defendant, require the court order to direct the parties and their counsel to meet at the premises, or other place as specified, no later than 30 days after issuance of the court order, to jointly inspect the premises, and review any programmatic or policy issues, that are claimed to constitute a violation of a construction-related accessibility standard.
Existing law requires that an allegation of a construction-related accessibility claim in a complaint state facts sufficient to allow a reasonable person to identify the basis of the violation, including, but not limited to, a plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred.
This bill would, for cases filed by or on behalf of a high-frequency litigant, require the complaint to also state that the complaint is filed by, or on behalf of, a high-frequency litigant, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint, and the reason why the individual visited the place of public accommodation.
This bill would become operative only if Senate Bill 251 of the 2015-16 Legislative Session, relating to disability access, is enacted on or before January 1, 2016.
Existing Constitutional provisions require a statute that limits the right of public access to meeting or writings of public officials to be adopted with findings demonstrating the interested to be protected by that limitation and the need to protect that interest.
This bill would declare that it includes limitations on access, that the interests to be protected are the privacy rights of the litigants, and that the need to protect those interests is to prevent a chilling effect on litigation.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
The bill also would include technical changes to these provisions.
Existing law provides that individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, public facilities, and other public places, and allows a person who is aggrieved or potentially aggrieved by a violation of specific provisions of law to bring an action to enjoin the violation. Existing law requires an attorney to provide a written advisory with each demand letter or complaint, as defined, sent to or served upon a defendant or potential defendant for any construction-related accessibility claim, as specified.
This bill would require the above-described advisory to include additional information regarding the rights and obligations of business owners and commercial tenants, as specified. In addition to the written advisory, the bill would require an attorney to provide a defendant or potential defendant of a construction-related accessibility claim with an answer form developed by the Judicial Council, which would allow a defendant to respond in the event a complaint is filed, as specified. The bill would, on or before July 1, 2016, require the Judicial Council to update the advisory form and adopt the answer form, as specified.
The bill also would include technical changes to these provisions.
Existing law provides that individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, public facilities, and other public places, and allows a person who is aggrieved or potentially aggrieved by a violation of specific provisions of law to bring an action to enjoin the violation. Existing law requires an attorney to provide a written advisory with each demand letter or complaint, as defined, sent to or served upon a defendant or potential defendant for any construction-related accessibility claim, as specified.
This bill would require the above-described advisory to include additional information regarding the rights and obligations of business owners and commercial tenants, as specified. In addition to the written advisory, the bill would require an attorney to provide a defendant or potential defendant of a construction-related accessibility claim with an answer form developed by the Judicial Council, which would allow a defendant to respond in the event a complaint is filed, as specified. The bill would, on or before July 1, 2016, require the Judicial Council to update the advisory form and adopt the answer form, as specified.
(1)Existing law provides definitions for particular terms used within the Code of Civil Procedure, including the terms signature or subscription, which are defined to include a mark of a person, when the person cannot write, with his or her name being written near it by a person who writes his or her own name as a witness, as specified.
This bill would provide that the terms signature or subscription also include an electronic signature, defined as an electronic image or symbol of a persons signature that is attached to, or logically associated with, a document and executed or adopted by the person with an intent to sign the document.
(2)Existing law provides, in a dismissal of an action by a court, that the court is required to sign a written order and file the order in the action, which constitutes a judgment that is effective for all purposes. In all other cases, existing law provides that a judgment is required to be rendered on the merits.
This bill would require all judgments to be signed by the court, and would provide that an electronic signature is as effective as an original signature.
The bill also would include technical changes to these provisions.
(1)Existing law provides definitions for particular terms used within the Code of Civil Procedure, including the terms signature or subscription, which are defined to include a mark of a person, when the person cannot write, with his or her name being written near it by a person who writes his or her own name as a witness, as specified.
This bill would provide that the terms signature or subscription also include an electronic signature, defined as an electronic image or symbol of a persons signature that is attached to, or logically associated with, a document and executed or adopted by the person with an intent to sign the document.
(2)Existing law provides, in a dismissal of an action by a court, that the court is required to sign a written order and file the order in the action, which constitutes a judgment that is effective for all purposes. In all other cases, existing law provides that a judgment is required to be rendered on the merits.
This bill would require all judgments to be signed by the court, and would provide that an electronic signature is as effective as an original signature.
The bill also would include technical changes to these provisions.
(a)For purposes of this section, the following apply:
(1)Complaint means a civil complaint that is filed or is to be filed with a court and is sent to or served upon a defendant on the basis of one or more construction-related accessibility claims, as defined in this section.
(2)Construction-related accessibility claim means any claim of a violation of any construction-related accessibility standard, as defined by paragraph (6) of subdivision (a) of Section 55.52, with respect to a place of public accommodation. Construction-related accessibility claim does not include a claim of interference with housing within the meaning of paragraph (2) of subdivision (b) of Section 54.1, or any claim of interference caused by something other than the construction-related accessibility condition of the property, including, but not limited to, the conduct of any person.
(3)Demand for money means a prelitigation written document or oral statement that is provided or issued to a building owner or tenant, or the owners or tenants agent or employee, that does all of the following:
(A)Alleges that the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2).
(B)Contains or makes a request or demand for money or an offer or agreement to accept money.
(C)Is provided or issued whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(4)Demand letter means a prelitigation written document that is provided to a building owner or tenant, or the owners or tenants agent or employee, that alleges the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2), and is provided whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(b)An attorney shall provide the following items with each demand letter or complaint sent to or served upon a defendant or potential defendant alleging a construction-related accessibility claim:
(1)A written advisory on the form described in subparagraph (B), or, until that form is available, on a separate page or pages that are clearly distinguishable from the demand letter or complaint. The advisory shall not be required in subsequent communications following the initial demand letter or initial complaint unless a new construction-related accessibility claim is asserted in the subsequent demand letter or amended complaint.
(A)The advisory shall state as follows:
STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY INFORMATION FOR BUILDING OWNERS AND TENANTS
This information is available in English, Spanish, Chinese, Vietnamese, and Korean through the Judicial Council of California. Persons with visual impairments can get assistance in viewing this form through the Judicial Council Internet Web site at www.courts.ca.gov.
California law requires that you receive this information because the demand letter or court complaint you received with this document claims that your building or property does not comply with one or more existing construction-related accessibility laws or regulations protecting the civil rights of persons with disabilities to access public places.
YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability access laws is a serious and significant responsibility that applies to all California building owners and tenants with buildings open for business to the public. You may obtain information about your legal obligations and how to comply with disability access laws through the Division of the State Architect at www.dgs.ca.gov. Information is also available from the California Commission on Disability Access at www.ccda.ca.gov/guide.htm.
YOU HAVE IMPORTANT LEGAL RIGHTS. The allegations made in the accompanying demand letter or court complaint do not mean that you are required to pay any money unless and until a court finds you liable. Moreover, RECEIPT OF A DEMAND LETTER OR COURT COMPLAINT AND THIS ADVISORY DOES NOT NECESSARILY MEAN YOU WILL BE FOUND LIABLE FOR ANYTHING. You will have the right if you are later sued to fully present your explanation why you believe you have not in fact violated disability access laws or have corrected the violation or violations giving rise to the claim.
You have the right to seek assistance or advice about this demand letter or court complaint from any person of your choice. If you have insurance, you may also wish to contact your insurance provider. Your best interest may be served by seeking legal advice or representation from an attorney, but you may also represent yourself and file the necessary court papers to protect your interests if you are served with a court complaint. If you have hired an attorney to represent you, you should immediately notify your attorney.
If a court complaint has been served on you, you will get a separate advisory notice with the complaint advising you of special options and procedures available to you under certain conditions.
ADDITIONAL THINGS YOU SHOULD KNOW:
ATTORNEY MISCONDUCT. Except for limited circumstances, state law generally requires that a prelitigation demand letter from an attorney MAY NOT MAKE A REQUEST OR DEMAND FOR MONEY OR AN OFFER OR AGREEMENT TO ACCEPT MONEY. Moreover, a demand letter from an attorney MUST INCLUDE THE ATTORNEYS STATE BAR LICENSE NUMBER.
If you believe the attorney who provided you with this notice and prelitigation demand letter is not complying with state law, you may send a copy of the demand letter you received from the attorney to the State Bar of California by facsimile transmission to 1-415-538-2171, or by mail to the State Bar of California, 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
REDUCING YOUR DAMAGES. If you are a small business owner and correct all of the construction-related violations that are the basis of the complaint against you within 30 days of being served with the complaint, you may qualify for reduced damages. You may wish to consult an attorney to obtain legal advice. You may also wish to contact the California Commission on Disability Access for additional information about the rights and obligations of business owners.
COMMERCIAL TENANT. If you are a commercial tenant, you may not be responsible for ensuring that some or all portions of the premises you lease for your business, including common areas such as parking lots, are accessible to the public because those areas may be the responsibility of your landlord. You may want to refer to your lease agreement and consult with an attorney or contact your landlord, to determine if your landlord is responsible for maintaining and improving some or all of the areas you lease.
(B)On or before July 1, 2016, the Judicial Council shall update the advisory form that may be used by an attorney to comply with the requirements of subparagraph (A). The advisory form shall be in substantially the same format and include all of the text set forth in subparagraph (A). The advisory form shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the advisory form is available in additional languages, and the Judicial Council Internet Web site address where the different versions of the advisory form are located. The advisory form shall include Internet Web site information for the Division of the State Architect and the California Commission on Disability Access.
(2)A verified answer form developed by the Judicial Council, which allows a defendant to respond to the complaint in the event a complaint is filed.
(A)The answer form shall be written in plain language and allow the defendant to state any relevant information affecting the defendants liability or damages including, but not limited to, the following:
(i)Specific denials of the allegations in the complaint, including whether the plaintiff has demonstrated that he or she was denied full and equal access to the place of public accommodation on a particular occasion pursuant to Section 55.56.
(ii)Potential affirmative defenses available to the defendant, including:
(I)An assertion that the defendants landlord is responsible for ensuring that some or all of the property leased by the defendant, including the areas at issue in the complaint, are accessible to the public. The defendant shall provide facts supporting that assertion, and the name and contact information of the defendants landlord.
(II)Any other affirmative defense the defendant wishes to assert.
(iii)A request to meet in person at the subject premises, if the defendant qualifies for an early evaluation conference pursuant to Section 55.54.
(iv)Any other information that the defendant believes is relevant to his or her potential liability or damages, including that the defendant qualifies for reduced damages pursuant to paragraph (1) or (2) of subdivision (f) of Section 55.56, and, if so, any facts supporting that assertion.
(B)The answer form shall provide instructions to a defendant who wishes to file the form as an answer to the complaint. The form shall also notify the defendant that he or she may use the completed form as an informal response to a demand letter or for settlement discussion purposes.
(C)On or before July 1, 2016, the Judicial Council shall adopt the answer form that may be used by an attorney to comply with the requirements of this paragraph, and shall post the answer form on the Judicial Council Internet Web site.
(c)Subdivision (b) applies only to a demand letter or complaint made by an attorney. This section does not affect the right to file a civil complaint under any other law or regulation protecting the physical access rights of persons with disabilities. Additionally, this section does not require a party to provide or send a demand letter to another party before proceeding against that party with a civil complaint.
(d)This section does not apply to an action brought by the Attorney General or any district attorney, city attorney, or county counsel.
SEC. 2.Section 55.32 of the Civil Code, as added by Section 5 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Contemporaneously with providing the demand letter, send a copy of the demand letter to the State Bar of California by facsimile transmission at 1-415-538-2171, or by mail to 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
(3)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall do both of the following:
(1)Send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(2)Notify the California Commission on Disability Access within five business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of the following information in a standard format specified by the commission:
(A)The date of the judgment, settlement, or dismissal.
(B)Whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3.
(C)If the construction-related accessibility violations alleged in the complaint were not remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3, whether or not another favorable result was achieved after the plaintiff filed the complaint or provided the demand letter.
(D)Whether or not the defendant submitted an application for an early evaluation conference and stay pursuant to Section 55.54, whether the defendant requested a site inspection, the date of any early evaluation conference, and the date of any site inspection.
(c)A violation of paragraph (2) or (3) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney where a copy of the complaint, demand letter, or notification of a case outcome is not sent to the California Commission on Disability Access within five business days, or a copy of the demand letter is not sent to the State Bar within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the complaint, demand letter, or notification of a case outcome to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (3) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the State Bar of California or the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter, complaint, or notification of a case outcome sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from either the sender or recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Commencing July 31, 2013, and annually each July 31 thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Committees on Judiciary, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters, complaints, and notifications of case outcomes it receives as provided in Section 8299.08 of the Government Code.
(h)Paragraphs (2) and (3) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(i)This section shall become operative on January 1, 2013.
(j)This section shall remain in effect only until January 1, 2019, and as of that date is repealed.
SEC. 3.Section 55.32 of the Civil Code, as added by Section 6 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall do both of the following:
(1)Send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(2)Notify the California Commission on Disability Access within five business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of the following information in a standard format specified by the commission:
(A)The date of the judgment, settlement, or dismissal.
(B)Whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3.
(C)If the construction-related accessibility violations alleged in the complaint were not remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3, whether or not another favorable result was achieved after the plaintiff filed the complaint or provided the demand letter.
(D)Whether or not the defendant submitted an application for an early evaluation conference and stay pursuant to Section 55.54, whether the defendant requested a site inspection, the date of any early evaluation conference, and the date of any site inspection.
(c)A violation of paragraph (2) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney if a copy of the demand letter, complaint, or notification of a case outcome is not sent to the California Commission on Disability Access within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the demand letter, complaint, or notification of a case outcome to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (2) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter or notification of a case outcome sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from the recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Notwithstanding Section 10231.5 of the Government Code, on or before July 31, 2019, and annually thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Judiciary Committees, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters, complaints, and notifications of case outcomes it receives as provided in Section 8299.08 of the Government Code.
(h)The expiration of any ground for discipline of an attorney shall not affect the imposition of discipline for any act prior to the expiration. An act or omission that constituted cause for imposition of discipline of an attorney when committed or omitted prior to January 1, 2019, shall continue to constitute cause for the imposition of discipline of that attorney on and after January 1, 2019.
(i)Paragraph (2) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(j)This section shall become operative on January 1, 2019.
SEC. 4.Section 55.54 of the Civil Code is amended to read:55.54.(a)(1)An attorney who causes a summons and complaint to be served in an action that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the same time, cause to be served a copy of the application form specified in subdivision (c) and a copy of the following notice, including, until January 1, 2013, the bracketed text, to the defendant on separate papers that shall be served with the summons and complaint:
ADVISORY NOTICE TO DEFENDANT
YOU MAY BE ENTITLED TO ASK FOR A COURT STAY (AN ORDER TEMPORARILY STOPPING ANY LAWSUIT) AND EARLY EVALUATION CONFERENCE IN THIS LAWSUIT AND MAY BE ASSESSED REDUCED STATUTORY DAMAGES IF YOU MEET CERTAIN CONDITIONS.
If the construction-related accessibility claim pertains to a site that has a Certified Access Specialist (CASp) inspection report for that site, or to a site where new construction or improvement was approved after January 1, 2008, by the local building permit and inspection process, you may make an immediate request for a court stay and early evaluation conference in the construction-related accessibility claim by filing the attached application form with the court. You may be entitled to the court stay and early evaluation conference regarding the accessibility claim only if ALL of the statements in the application form applicable to you are true.
FURTHER, if you are a defendant described above (with a CASp inspection report or with new construction after January 1, 2008), and, to the best of your knowledge, there have been no modifications or alterations completed or commenced since the CASp report or building department approval of the new construction or improvement that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, your liability for minimum statutory damages may be reduced to $1,000 for each offense, unless the violation was intentional, and if all construction-related accessibility violations giving rise to the claim are corrected within 60 days of being served with this complaint.
ALSO, if your business has been served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55 of the Civil Code, you may also be entitled to a court stay and an early evaluation conference. If you choose to request a stay and early evaluation conference, you may also request to meet in person with the plaintiff and counsel for both parties, as well as experts if the parties so elect, at the subject premises no later than 30 days after issuance of the court order to jointly inspect the portions of the subject premises and review any conditions that are claimed to constitute a violation of a construction-related accessibility standard.
IN ADDITION, if your business is a small business that, over the previous three years, or the existence of the business if less than three years, employs 25 or fewer employees on average over that time period and meets specified gross receipts criteria, you may also be entitled to the court stay and early evaluation conference and your minimum statutory damages for each claim may be reduced to $2,000 for each offense, unless the violation was intentional, and if all the alleged construction-related accessibility violations are corrected within 30 days of being served with the complaint.
If you plan to correct the violations giving rise to the claim, you should take pictures and measurements or similar action to document the condition of the physical barrier asserted to be the basis for a violation before undertaking any corrective action in case a court needs to see the condition of a barrier before it was corrected.
The court will schedule the conference to be held within 70 days after you file the attached application form.
[If you are not a defendant with a CASp inspection report, until a form is adopted by the Judicial Council, you may use the attached form if you modify the form and supplement it with your declaration stating any one of the following:
(1)Until January 1, 2018, that the sites new construction or improvement on or after January 1, 2008, and before January 1, 2016, was approved pursuant to the local building permit and inspection process; that, to the best of your knowledge, there have been no modifications or alterations completed or commenced since the building department approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(2)That the sites new construction or improvement passed inspection by a local building department inspector who is a certified access specialist; that, to the best of your knowledge, there have been no modifications or alterations completed or commenced since that inspection approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(3)That your business is a small business with 25 or fewer employees and meets the gross receipts criteria set out in Section 55.56 of the Civil Code, and that all violations giving rise to the claim have been corrected, or will be corrected within 30 days of being served with the complaint.]
The court will also issue an immediate stay of the proceedings unless the plaintiff has obtained a temporary restraining order in the construction-related accessibility claim. You may obtain a copy of the application form, filing instructions, and additional information about the stay and early evaluation conference through the Judicial Council Internet Web site at www.courts.ca.gov/selfhelp-start.htm.
You may file the application after you are served with a summons and complaint, but no later than your first court pleading or appearance in this case, which is due within 30 days after you receive the summons and complaint. If you do not file the application, you will still need to file your reply to the lawsuit within 30 days after you receive the summons and complaint to contest it. You may obtain more information about how to represent yourself and how to file a reply without hiring an attorney at www.courts.ca.gov/selfhelp-start.htm.
You may file the application without the assistance of an attorney, but it may be in your best interest to immediately seek the assistance of an attorney experienced in disability access laws when you receive a summons and complaint. You may make an offer to settle the case, and it may be in your interest to put that offer in writing so that it may be considered under Section 55.55 of the Civil Code.
(2)An attorney who files a Notice of Substitution of Counsel to appear as counsel for a plaintiff who, acting in propria persona, had previously filed a complaint in an action that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the same time, cause to be served a copy of the application form specified in subdivision (c) and a copy of the notice specified in paragraph (1) upon the defendant on separate pages that shall be attached to the Notice of Substitution of Counsel.
(b)(1)Notwithstanding any other law, upon being served with a summons and complaint asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, a qualified defendant, or other defendant as defined in paragraph (2), may file a request for a court stay and early evaluation conference in the proceedings of that claim prior to or simultaneous with that defendants responsive pleading or other initial appearance in the action that includes the claim. If that defendant filed a timely request for stay and early evaluation conference before a responsive pleading was due, the period for filing a responsive pleading shall be tolled until the stay is lifted. Any responsive pleading filed simultaneously with a request for stay and early evaluation conference may be amended without prejudice, and the period for filing that amendment shall be tolled until the stay is lifted.
(2)This subdivision shall also apply to a defendant if any of the following apply:
(A)Until January 1, 2018, the sites new construction or improvement on or after January 1, 2008, and before January 1, 2016, was approved pursuant to the local building permit and inspection process, and the defendant declares with the application that, to the best of the defendants knowledge, there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, and that all violations have been corrected, or will be corrected within 60 days of being served with the complaint.
(B)The sites new construction or improvement was approved by a local public building department inspector who is a certified access specialist, and the defendant declares with the application that, to the best of the defendants knowledge, there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, and that all violations have been corrected, or will be corrected within 60 days of being served with the complaint.
(C)The defendant is a small business described in subdivision (f) of Section 55.56, and the defendant declares with the application that all violations have been corrected, or will be corrected within 30 days of being served with the complaint.
(D)The defendant is a business that has been served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55.
(3)Notwithstanding any other law, if the plaintiff had acted in propria persona in filing a complaint that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, a qualified defendant, or a defendant described by paragraph (2), who is served with a Notice of Substitution of Counsel shall have 30 days to file an application for a stay and an early evaluation conference. The application may be filed prior to or after the defendants filing of a responsive pleading or other initial appearance in the action that includes the claim, except that an application may not be filed in a claim in which an early evaluation conference or settlement conference has already been held on the claim.
(c)(1)An application for an early evaluation conference and stay by a qualified defendant shall include a signed declaration that states both of the following:
(A)The site identified in the complaint has been CASp-inspected or meets applicable standards, or is CASp determination pending or has been inspected by a CASp, and if the site is CASp-inspected or meets applicable standards, there have been no modifications completed or commenced since the date of inspection that may impact compliance with construction-related accessibility standards to the best of the defendants knowledge.
(B)An inspection report pertaining to the site has been issued by a CASp. The inspection report shall be provided to the court and the plaintiff at least 15 days prior to the court date set for the early evaluation conference.
(2)An application for an early evaluation conference and stay by a defendant described by subparagraph (A) of paragraph (2) of subdivision (b), which may be filed until January 1, 2018, shall include a signed declaration that states all of the following:
(A)The sites new construction or improvement was approved pursuant to the local building permit and inspection process on or after January 1, 2008, and before January 1, 2016.
(B)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(C)All construction-related violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served upon the defendant.
(3)An application for an early evaluation conference and stay by a defendant described in subparagraph (B) of paragraph (2) of subdivision (b) shall include a signed declaration that states all of the following:
(A)The sites new construction or improvement was approved by a local building department inspector who is a certified access specialist.
(B)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(C)All construction related violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served upon the defendant.
(4)An application for an early evaluation conference and stay by a defendant described by subparagraph (C) of paragraph (2) of subdivision (b) shall include the materials listed in paragraphs (5) and (6) of this subdivision, and shall include a signed declaration that states both of the following:
(A)The defendant is a small business that employs 25 or fewer employees and meets the gross receipts eligibility criteria provided in paragraph (2) of subdivision (f) of Section 55.56.
(B)All construction-related violations giving rise to the claim have been corrected, or will be corrected within 30 days of the complaint being served upon the defendant.
(5)An application for an early evaluation conference and stay by a small business defendant under paragraph (4) shall include evidence showing correction of all violations within 30 days of the service of the complaint and served upon the plaintiff with the reply unless the application is filed prior to completion of the corrections. In that event, the evidence shall be provided to the court and served upon the plaintiff within 10 days of the court order as provided in paragraph (4) of subdivision (d). This paragraph shall not be construed to extend the permissible time under subdivision (f) of Section 55.56 to make the corrections.
(6)An application for an early evaluation conference and stay by a small business defendant under paragraph (4) shall also include both of the following, which shall be confidential documents filed only with the court and not served upon or available to the plaintiff:
(A)Proof of the defendants number of employees, as shown by wage report forms filed with the Employment Development Department.
(B)Proof of the defendants average gross receipts for the previous three years, or for the existence of the business if less than three years, as shown by a federal or state tax document.
(7)An application for an early evaluation conference and stay by a defendant described by subparagraph (D) of paragraph (2) of subdivision (b) shall include a signed declaration that the defendant was served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55.
(8)The following provisional request and notice forms may be used and filed by a qualified defendant until forms are adopted by the Judicial Council for those purposes pursuant to subdivision (l):
PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE INSERTED(9)The provisional forms and any replacement Judicial Council forms shall include the defendants declaration of proof of service of the application, the notice of the courts order, and the courts order pursuant to subdivision (d).
(d)Upon the filing of an application for stay and early evaluation conference by a qualified defendant, or a defendant described by paragraph (2) of subdivision (b), the court shall immediately issue an order that does all of the following:
(1)Grants a 90-day stay of the proceedings with respect to the construction-related accessibility claim, unless the plaintiff has obtained temporary injunctive relief that is still in place for the construction-related accessibility claim.
(2)Schedules a mandatory early evaluation conference for a date as soon as possible from the date of the order, but in no event later than 70 days after issuance of the order, and in no event earlier than 50 days after the filing of the request.
(3)Directs the parties, and any other person whose authority is required to negotiate and enter into settlement, to appear in person at the time set for the conference. Appearance by counsel shall not satisfy the requirement that the parties or those with negotiation and settlement authority personally appear, provided, however, that the court may allow a party who is unable to attend in person due to his or her disability to participate in the hearing by telephone or other alternative means or through a representative authorized to settle the case.
(4)(A)Directs the qualified defendant to file with the court and serve on the plaintiff a copy of any relevant CASp inspection report at least 15 days before the date of the conference. The CASp inspection report is confidential and is available only as set forth in paragraph (5) of this subdivision and in paragraph (4) of subdivision (e).
(B)Directs a defendant described by subparagraph (A) or (B) of paragraph (2) of subdivision (b) who has filed a declaration stating that the violation or violations have been corrected, or will be corrected within 60 days of service of the complaint to file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days after the completion of the corrections.
(C)Directs a defendant described by subparagraph (C) of paragraph (2) of subdivision (b) who has filed a declaration stating that the violation or violations have been corrected, or will be corrected within 30 days of service of the complaint to file with the court and serve on the plaintiff within 10 days after issuance of the court order evidence of correction of the violation or violations, if that evidence showing correction was not filed previously with the application and served on the plaintiff.
(5)Directs the parties that the CASp inspection report may be disclosed only to the court, the parties to the action, the parties attorneys, those individuals employed or retained by the attorneys to assist in the litigation, and insurance representatives or others involved in the evaluation and settlement of the case.
(6)If the defendant so requests, directs the parties that no later than 30 days after issuance of the court order the parties and their counsel, accompanied by their experts if the parties so elect, shall meet in person at the subject premises. They shall jointly inspect the portions of the subject premises, and shall review any programmatic or policy issues, that are claimed to constitute a violation of a construction-related accessibility standard. The court may allow a plaintiff who is unable to meet in person at the subject premises to be excused from participating in a site visit or to participate by telephone or other alternative means for good cause. A plaintiff or plaintiffs counsel is not required, but may agree, to attend more than one in-person site meeting. A site inspection pursuant to this paragraph shall not affect the right of the parties to conduct otherwise appropriate discovery.
(7)Directs the plaintiff to file with the court and serve on the defendant at least 15 days before the date of the conference a statement that includes, to the extent reasonably known, for use solely for the purpose of the early evaluation conference, all of the following:
(A)An itemized list of specific conditions on the subject premises that are the basis of the claimed violations of construction-related accessibility standards in the plaintiffs complaint.
(B)The amount of damages claimed.
(C)The amount of attorneys fees and costs incurred to date, if any, that are being claimed.
(D)Any demand for settlement of the case in its entirety.
(e)(1)A party failing to comply with any court order may be subject to court sanction at the courts discretion.
(2)(A)The court shall lift the stay when the defendant has failed to file and serve the CASp inspection report prior to the early evaluation conference and has failed also to produce the report at the time of the early evaluation conference, unless the defendant shows good cause for that failure.
(B)The court shall lift the stay when a defendant described by paragraph (2) of subdivision (b) has failed to file and serve the evidence showing correction of the violation or violations as required by law.
(3)The court may lift the stay at the conclusion of the early evaluation conference upon a showing of good cause by the plaintiff. Good cause may include the defendants failure to make reasonably timely progress toward completion of corrections noted by a CASp.
(4)The CASp inspection report filed and served pursuant to subdivision (d) shall remain confidential throughout the stay and shall continue to be confidential until the conclusion of the claim, whether by dismissal, settlement, or final judgment, unless there is a showing of good cause by any party. Good cause may include the defendants failure to make reasonably timely progress toward completion of corrections noted by a CASp. The confidentiality of the inspection report shall terminate upon the conclusion of the claim, unless the owner of the report obtains a court order pursuant to the California Rules of Court to seal the record.
(f)All discussions at the early evaluation conference shall be subject to Section 1152 of the Evidence Code. It is the intent of the Legislature that the purpose of the evaluation conference shall include, but not be limited to, evaluation of all of the following, as applicable:
(1)Whether the defendant is entitled to the 90-day stay for some or all of the identified issues in the case, as a qualified defendant.
(2)The current condition of the site and the status of any plan of corrections, including whether the qualified defendant has corrected or is willing to correct the alleged violations, and the timeline for doing so.
(3)Whether subdivision (f) of Section 55.56 may be applicable to the case, and whether all violations giving rise to the claim have been corrected within the specified time periods.
(4)Whether the case, including any claim for damages or injunctive relief, can be settled in whole or in part.
(5)Whether the parties should share other information that may facilitate early evaluation and resolution of the dispute.
(g)Nothing in this section precludes any party from making an offer to compromise pursuant to Section 998 of the Code of Civil Procedure.
(h)For a claim involving a qualified defendant, as provided in paragraph (1) of subdivision (b), the court may schedule additional conferences and may extend the 90-day stay for good cause shown, but not to exceed one additional 90-day extension.
(i)Early evaluation conferences shall be conducted by a superior court judge or commissioner, or a court early evaluation conference officer. A commissioner shall not be qualified to conduct early evaluation conferences pursuant to this subdivision unless he or she has received training regarding disability access requirements imposed by the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), state laws that govern access to public facilities, and federal and state regulations adopted pursuant to those laws. For purposes of this subdivision, a court early evaluation conference officer means an attorney employed by the court who has received training regarding disability access requirements imposed by the federal Americans with Disabilities Act of 1990, state laws that govern access to public facilities, and federal and state regulations adopted pursuant to those laws. Attorneys serving in this capacity may also be utilized by the court for other purposes not related to these proceedings.
(j)Nothing in this part shall be deemed to make any inspection report, opinion, statement, or other finding or conclusion of a CASp binding on the court, or to abrogate in any manner the ultimate authority of the court to make all appropriate findings of fact and law. The CASp inspection report and any opinion, statement, finding, or conclusion therein shall be given the weight the trier of fact finds that it deserves.
(k)Nothing in this part shall be construed to invalidate or limit any California construction-related accessibility standard that provides greater or equal protection for the rights of individuals with disabilities than is afforded by the federal Americans with Disabilities Act (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.) and the federal regulations adopted pursuant to that act.
(l)(1)The Judicial Council shall, by January 1, 2013, prepare and post on its Internet Web site instructions and a form for use by a qualified defendant, or other defendant described by paragraph (2) of subdivision (b), to file an application for stay and early evaluation conference as provided in subdivisions (b) and (c), a form for the courts notice of stay and early evaluation conference, and any other forms appropriate to implement the provisions relating to early evaluation conferences. Until those forms are adopted, the Judicial Council shall post on its Internet Web site the provisional forms set forth in subdivision (c).
(2)Until the adoption of the forms as provided in paragraph (1), the provisional application form may be used by a defendant described by paragraph (2) of subdivision (b).
(3)In lieu of the provisions specified in number 3 of page 1 of the application form set forth in paragraph (7) of subdivision (c), the application shall include one of the following declarations of the defendant as to the basis for the application, as follows:
(A)That all of the following apply to a defendant described by subparagraph (A) of paragraph (2) of subdivision (b):
(i)The sites new construction or improvement was approved pursuant to the local building permit and inspection process on or after January 1, 2008, and before January 1, 2016.
(ii)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(iii)All the violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(B)That all of the following apply to a defendant described by subparagraph (B) of paragraph (2) of subdivision (b):
(i)The sites new construction or improvement was approved by a local public building department inspector who is a certified access specialist.
(ii)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(iii)All the violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(C)That both of the following apply to a defendant described by subparagraph (C) of paragraph (2) of subdivision (b):
(i)The defendant is a small business described in paragraph (2) of subdivision (f) of Section 55.56.
(ii)The violation or violations giving rise to the claim have been corrected, or will be corrected within 30 days of the complaint being served.
(4)In lieu of the provision specified in number 4(c) of page 1 of the application form set forth in paragraph (7) of subdivision (c), the application shall include a request that the court order the defendant to do either of the following:
(A)For a defendant who has filed a declaration stating that all violations have been corrected, or will be corrected within 60 days of service of the complaint, file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days of the completion of the corrections.
(B)For a defendant who is a small business that has filed a declaration stating that all the violations have been corrected, or will be corrected within 30 days of the service of the complaint, file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days after issuance of the court order, if that evidence showing correction was not filed previously with the application and served on the plaintiff.
(5)The Judicial Council shall also prepare and post on its Internet Web site instructions and cover pages to assist plaintiffs and defendants, respectively, to comply with their filing responsibilities under subdivision (d). The cover pages shall also provide for the partys declaration of proof of service of the pertinent document served under the court order.
(m)The stay provisions shall not apply to any construction-related accessibility claim in which the plaintiff has been granted temporary injunctive relief that remains in place.
(n)This section shall not apply to any action brought by the Attorney General, or by any district attorney, city attorney, or county counsel.
(o)The amendments to this section made by Senate Bill 1186 of the 201112 Regular Session of the Legislature shall apply only to claims filed on or after the operative date of that act. Nothing in this part is intended to affect any complaint filed before that date.
(p)Nothing in this part is intended to affect existing law regarding class action requirements.
SEC. 5.Section 425.50 of the Code of Civil Procedure is amended to read:425.50.(a)An allegation of a construction-related accessibility claim in a complaint, as defined in subdivision (a) of Section 55.52 of the Civil Code, shall state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim, including all of the following:
(1)A plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred, with sufficient information about the location of the alleged barrier to enable a reasonable person to identify the access barrier.
(2)The way in which the barrier denied the individual full and equal use or access, or in which it deterred the individual, on each particular occasion.
(3)The date or dates of each particular occasion on which the claimant encountered the specific access barrier, or on which he or she was deterred.
(4)(A)Except in complaints that allege physical injury or damage to property, a complaint filed by or on behalf of a high-frequency litigant shall also state all of the following:
(i)Whether the complaint is filed by, or on behalf of, a high-frequency litigant.
(ii)In the case of a high-frequency litigant who is a plaintiff, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint.
(iii)In the case of a high-frequency litigant who is a plaintiff, the reason the individual was in the geographic area of the defendants business.
(iv)In the case of a high-frequency litigant who is a plaintiff, the reason why the individual desired to access the defendants business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose.
(B)As used in this section high-frequency litigant has the same meaning as set forth in subdivision (b) of Section 425.55.
(b)(1)A complaint alleging a construction-related accessibility claim, as those terms are defined in subdivision (a) of Section 55.3 of the Civil Code, shall be verified by the plaintiff. A complaint filed without verification shall be subject to a motion to strike.
(2)A complaint alleging a construction-related accessibility claim filed by, or on behalf of, a high-frequency litigant shall state in the caption ACTION SUBJECT TO THE SUPPLEMENTAL FEE IN GOVERNMENT CODE SECTION 70616.5.
(c)A complaint alleging a construction-related accessibility claim shall be signed by at least one attorney of record in the attorneys individual name, or, if the party is not represented by an attorney, shall be signed by the party. By signing the complaint, the attorney or unrepresented party is certifying that, to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
(1)It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(2)The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
(3)The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4)The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(d)A court may, after notice and a reasonable opportunity to respond, determine whether subdivision (c) has been violated and, if so, impose sanctions as provided in Section 128.7 for violations of subdivision (b) of Section 128.7.
(e)Nothing in this section shall limit the right of a plaintiff to amend a complaint under Section 472, or with leave of the court under Section 473. However, an amended pleading alleging a construction-related accessibility claim shall be pled as required by subdivision (a).
(f)The determination whether an attorney is a high-frequency litigant shall be made solely on the basis of the verified complaint and any other publicly available documents. Notwithstanding any other law, no party to the proceeding may conduct discovery with respect to whether an attorney is a high-frequency litigant.
(g)This section shall become operative on January 1, 2013.
SEC. 6.Section 425.55 is added to the Code of Civil Procedure, to read:425.55.(a)The Legislature finds and declares all of the following:
(1)Protection of the civil rights of persons with disabilities is of the utmost importance to this state, and private enforcement is the essential means of achieving that goal, as the law has been designed.
(2)According to information from the California Commission on Disability Access, more than one-half, or 54 percent, of all construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms. Forty-six percent of all complaints were filed by a total of 14 parties. Therefore, a very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year. Moreover, these lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the accessibility violation. This practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations as they are entitled to have full and equal access under the states Unruh Civil Rights Act (Section 51 of the Civil Code) and the federal Americans with Disability Act of 1990 (Public Law 101-336).
(3)Therefore, given these special and unique circumstances, the provisions of this section are warranted for this limited group of plaintiffs.
(b)For the purposes of this article, high-frequency litigant means a person, except as specified in paragraph (3), who utilizes court resources in actions arising from alleged construction-related access violations at such a high level that it is appropriate that additional safeguards apply so as to ensure that the claims are warranted. A high-frequency litigant means one or more of the following:
(1)A plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.
(2)An attorney who has represented as attorney of record 10 or more high-frequency litigant plaintiffs in actions that were resolved within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation, excluding all of the following actions:
(A)An action in which an early evaluation conference was held pursuant to Section 55.54 of the Civil Code.
(B)An action in which judgment was entered in favor of the plaintiff.
(C)An action in which the construction-related accessibility violations alleged in the complaint were remedied in whole or in part, or a favorable result was achieved, after the plaintiff filed a complaint or provided a demand letter, as defined in Section 55.3 of the Civil Code.
(3)This section does not apply to an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment to represent a client in asserting a construction-related accessibility claim, or the client in such a case.
SEC. 7.Section 68085.35 is added to the Government Code, immediately following Section 68085.3, to read:68085.35.(a)Fees collected under Section 70616.5 shall be deposited in a bank account established by the Administrative Office of the Courts for deposit of fees collected by the courts.
(b)For each one-thousand-dollar ($1,000) fee listed in subdivision (a), the Administrative Office of the Courts shall distribute specified amounts as follows:
(1)Five hundred dollars ($500) to the General Fund for use, upon appropriation by the Legislature, by the California Commission on Disability Access.
(2)The remainder of the fee to the Trial Court Trust Fund.
(c)If any of the fees listed in subdivision (a) are reduced or partially waived, the amount of the reduction or partial waiver shall be deducted from the amount to be distributed to each fund in the same proportion as the amount each distribution bears to the total amount of the fee.
(d)No revenue collected pursuant to Section 70616.5 shall be used to supplant existing program funding of the California Commission on Disability Access.
SEC. 8.Section 70616.5 is added to the Government Code, to read:70616.5.(a)In addition to the first paper filing fee required by Section 70611 or 70613, a single high-frequency litigant fee shall be paid to the clerk on behalf of a plaintiff who is a high-frequency litigant, as that term is defined in Section 425.55 of the Code of Civil Procedure, at the time of the filing of the first paper if the complaint alleges a construction-related accessibility claim, as those terms are defined in subdivision (a) of Section 55.3 of the Civil Code.
(b)The fee established by this section shall be one thousand dollars ($1,000). The fee shall be transmitted as provided in Section 68085.35.
(c)Failure to pay the fees required by this section shall have the same effect as the failure to pay a filing fee, and shall be subject to the same enforcement and penalties.
SEC. 9.The Legislature finds and declares that Section 3 of this act limits the publics right of access to public documents within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest and the need for protecting that interest:
(a)The interest protected by this limitation is the privacy rights of litigants.
(b)The need for protecting those interests is to preclude the chilling effect on litigation if public disclosure were required.
SEC. 10.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SEC. 11.This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to ensure that the courts are not overburdened and are able to provide access to the judicial system for all persons seeking redress of their construction-related accessibility claims, it is necessary that these reasonable requirements placed on high-frequency litigants take effect immediately.
(a)For purposes of this section, the following apply:
(1)Complaint means a civil complaint that is filed or is to be filed with a court and is sent to or served upon a defendant on the basis of one or more construction-related accessibility claims, as defined in this section.
(2)Construction-related accessibility claim means any claim of a violation of any construction-related accessibility standard, as defined by paragraph (6) of subdivision (a) of Section 55.52, with respect to a place of public accommodation. Construction-related accessibility claim does not include a claim of interference with housing within the meaning of paragraph (2) of subdivision (b) of Section 54.1, or any claim of interference caused by something other than the construction-related accessibility condition of the property, including, but not limited to, the conduct of any person.
(3)Demand for money means a prelitigation written document or oral statement that is provided or issued to a building owner or tenant, or the owners or tenants agent or employee, that does all of the following:
(A)Alleges that the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2).
(B)Contains or makes a request or demand for money or an offer or agreement to accept money.
(C)Is provided or issued whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(4)Demand letter means a prelitigation written document that is provided to a building owner or tenant, or the owners or tenants agent or employee, that alleges the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2), and is provided whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(b)An attorney shall provide the following items with each demand letter or complaint sent to or served upon a defendant or potential defendant alleging a construction-related accessibility claim:
(1)A written advisory on the form described in subparagraph (B), or, until that form is available, on a separate page or pages that are clearly distinguishable from the demand letter or complaint. The advisory shall not be required in subsequent communications following the initial demand letter or initial complaint unless a new construction-related accessibility claim is asserted in the subsequent demand letter or amended complaint.
(A)The advisory shall state as follows:
STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY INFORMATION FOR BUILDING OWNERS AND TENANTS
This information is available in English, Spanish, Chinese, Vietnamese, and Korean through the Judicial Council of California. Persons with visual impairments can get assistance in viewing this form through the Judicial Council Internet Web site at www.courts.ca.gov.
California law requires that you receive this information because the demand letter or court complaint you received with this document claims that your building or property does not comply with one or more existing construction-related accessibility laws or regulations protecting the civil rights of persons with disabilities to access public places.
YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability access laws is a serious and significant responsibility that applies to all California building owners and tenants with buildings open for business to the public. You may obtain information about your legal obligations and how to comply with disability access laws through the Division of the State Architect at www.dgs.ca.gov. Information is also available from the California Commission on Disability Access at www.ccda.ca.gov/guide.htm.
YOU HAVE IMPORTANT LEGAL RIGHTS. The allegations made in the accompanying demand letter or court complaint do not mean that you are required to pay any money unless and until a court finds you liable. Moreover, RECEIPT OF A DEMAND LETTER OR COURT COMPLAINT AND THIS ADVISORY DOES NOT NECESSARILY MEAN YOU WILL BE FOUND LIABLE FOR ANYTHING. You will have the right if you are later sued to fully present your explanation why you believe you have not in fact violated disability access laws or have corrected the violation or violations giving rise to the claim.
You have the right to seek assistance or advice about this demand letter or court complaint from any person of your choice. If you have insurance, you may also wish to contact your insurance provider. Your best interest may be served by seeking legal advice or representation from an attorney, but you may also represent yourself and file the necessary court papers to protect your interests if you are served with a court complaint. If you have hired an attorney to represent you, you should immediately notify your attorney.
If a court complaint has been served on you, you will get a separate advisory notice with the complaint advising you of special options and procedures available to you under certain conditions.
ADDITIONAL THINGS YOU SHOULD KNOW:
ATTORNEY MISCONDUCT. Except for limited circumstances, state law generally requires that a prelitigation demand letter from an attorney MAY NOT MAKE A REQUEST OR DEMAND FOR MONEY OR AN OFFER OR AGREEMENT TO ACCEPT MONEY. Moreover, a demand letter from an attorney MUST INCLUDE THE ATTORNEYS STATE BAR LICENSE NUMBER.
If you believe the attorney who provided you with this notice and prelitigation demand letter is not complying with state law, you may send a copy of the demand letter you received from the attorney to the State Bar of California by facsimile transmission to 1-415-538-2171, or by mail to the State Bar of California, 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
REDUCING YOUR DAMAGES. If you are a small business owner and correct all of the construction-related violations that are the basis of the complaint against you within 30 days of being served with the complaint, you may qualify for reduced damages. You may wish to consult an attorney to obtain legal advice. You may also wish to contact the California Commission on Disability Access for additional information about the rights and obligations of business owners.
COMMERCIAL TENANT. If you are a commercial tenant, you may not be responsible for ensuring that some or all portions of the premises you lease for your business, including common areas such as parking lots, are accessible to the public because those areas may be the responsibility of your landlord. You may want to refer to your lease agreement and consult with an attorney or contact your landlord, to determine if your landlord is responsible for maintaining and improving some or all of the areas you lease.
(B)On or before July 1, 2016, the Judicial Council shall update the advisory form that may be used by an attorney to comply with the requirements of subparagraph (A). The advisory form shall be in substantially the same format and include all of the text set forth in subparagraph (A). The advisory form shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the advisory form is available in additional languages, and the Judicial Council Internet Web site address where the different versions of the advisory form are located. The advisory form shall include Internet Web site information for the Division of the State Architect and the California Commission on Disability Access.
(2)A verified answer form developed by the Judicial Council, which allows a defendant to respond to the complaint in the event a complaint is filed.
(A)The answer form shall be written in plain language and allow the defendant to state any relevant information affecting the defendants liability or damages including, but not limited to, the following:
(i)Specific denials of the allegations in the complaint, including whether the plaintiff has demonstrated that he or she was denied full and equal access to the place of public accommodation on a particular occasion pursuant to Section 55.56.
(ii)Potential affirmative defenses available to the defendant, including:
(I)An assertion that the defendants landlord is responsible for ensuring that some or all of the property leased by the defendant, including the areas at issue in the complaint, are accessible to the public. The defendant shall provide facts supporting that assertion, and the name and contact information of the defendants landlord.
(II)Any other affirmative defense the defendant wishes to assert.
(iii)A request to meet in person at the subject premises, if the defendant qualifies for an early evaluation conference pursuant to Section 55.54.
(iv)Any other information that the defendant believes is relevant to his or her potential liability or damages, including that the defendant qualifies for reduced damages pursuant to paragraph (1) or (2) of subdivision (f) of Section 55.56, and, if so, any facts supporting that assertion.
(B)The answer form shall provide instructions to a defendant who wishes to file the form as an answer to the complaint. The form shall also notify the defendant that he or she may use the completed form as an informal response to a demand letter or for settlement discussion purposes.
(C)On or before July 1, 2016, the Judicial Council shall adopt the answer form that may be used by an attorney to comply with the requirements of this paragraph, and shall post the answer form on the Judicial Council Internet Web site.
(c)Subdivision (b) applies only to a demand letter or complaint made by an attorney. This section does not affect the right to file a civil complaint under any other law or regulation protecting the physical access rights of persons with disabilities. Additionally, this section does not require a party to provide or send a demand letter to another party before proceeding against that party with a civil complaint.
(d)This section does not apply to an action brought by the Attorney General or any district attorney, city attorney, or county counsel.
SEC. 2.Section 55.32 of the Civil Code, as added by Section 5 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Contemporaneously with providing the demand letter, send a copy of the demand letter to the State Bar of California by facsimile transmission at 1-415-538-2171, or by mail to 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
(3)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall do both of the following:
(1)Send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(2)Notify the California Commission on Disability Access within five business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of the following information in a standard format specified by the commission:
(A)The date of the judgment, settlement, or dismissal.
(B)Whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3.
(C)If the construction-related accessibility violations alleged in the complaint were not remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3, whether or not another favorable result was achieved after the plaintiff filed the complaint or provided the demand letter.
(D)Whether or not the defendant submitted an application for an early evaluation conference and stay pursuant to Section 55.54, whether the defendant requested a site inspection, the date of any early evaluation conference, and the date of any site inspection.
(c)A violation of paragraph (2) or (3) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney where a copy of the complaint, demand letter, or notification of a case outcome is not sent to the California Commission on Disability Access within five business days, or a copy of the demand letter is not sent to the State Bar within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the complaint, demand letter, or notification of a case outcome to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (3) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the State Bar of California or the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter, complaint, or notification of a case outcome sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from either the sender or recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Commencing July 31, 2013, and annually each July 31 thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Committees on Judiciary, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters, complaints, and notifications of case outcomes it receives as provided in Section 8299.08 of the Government Code.
(h)Paragraphs (2) and (3) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(i)This section shall become operative on January 1, 2013.
(j)This section shall remain in effect only until January 1, 2019, and as of that date is repealed.
SEC. 3.Section 55.32 of the Civil Code, as added by Section 6 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall do both of the following:
(1)Send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(2)Notify the California Commission on Disability Access within five business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of the following information in a standard format specified by the commission:
(A)The date of the judgment, settlement, or dismissal.
(B)Whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3.
(C)If the construction-related accessibility violations alleged in the complaint were not remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3, whether or not another favorable result was achieved after the plaintiff filed the complaint or provided the demand letter.
(D)Whether or not the defendant submitted an application for an early evaluation conference and stay pursuant to Section 55.54, whether the defendant requested a site inspection, the date of any early evaluation conference, and the date of any site inspection.
(c)A violation of paragraph (2) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney if a copy of the demand letter, complaint, or notification of a case outcome is not sent to the California Commission on Disability Access within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the demand letter, complaint, or notification of a case outcome to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (2) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter or notification of a case outcome sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from the recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Notwithstanding Section 10231.5 of the Government Code, on or before July 31, 2019, and annually thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Judiciary Committees, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters, complaints, and notifications of case outcomes it receives as provided in Section 8299.08 of the Government Code.
(h)The expiration of any ground for discipline of an attorney shall not affect the imposition of discipline for any act prior to the expiration. An act or omission that constituted cause for imposition of discipline of an attorney when committed or omitted prior to January 1, 2019, shall continue to constitute cause for the imposition of discipline of that attorney on and after January 1, 2019.
(i)Paragraph (2) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(j)This section shall become operative on January 1, 2019.
SEC. 4.Section 55.54 of the Civil Code is amended to read:55.54.(a)(1)An attorney who causes a summons and complaint to be served in an action that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the same time, cause to be served a copy of the application form specified in subdivision (c) and a copy of the following notice, including, until January 1, 2013, the bracketed text, to the defendant on separate papers that shall be served with the summons and complaint:
ADVISORY NOTICE TO DEFENDANT
YOU MAY BE ENTITLED TO ASK FOR A COURT STAY (AN ORDER TEMPORARILY STOPPING ANY LAWSUIT) AND EARLY EVALUATION CONFERENCE IN THIS LAWSUIT AND MAY BE ASSESSED REDUCED STATUTORY DAMAGES IF YOU MEET CERTAIN CONDITIONS.
If the construction-related accessibility claim pertains to a site that has a Certified Access Specialist (CASp) inspection report for that site, or to a site where new construction or improvement was approved after January 1, 2008, by the local building permit and inspection process, you may make an immediate request for a court stay and early evaluation conference in the construction-related accessibility claim by filing the attached application form with the court. You may be entitled to the court stay and early evaluation conference regarding the accessibility claim only if ALL of the statements in the application form applicable to you are true.
FURTHER, if you are a defendant described above (with a CASp inspection report or with new construction after January 1, 2008), and, to the best of your knowledge, there have been no modifications or alterations completed or commenced since the CASp report or building department approval of the new construction or improvement that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, your liability for minimum statutory damages may be reduced to $1,000 for each offense, unless the violation was intentional, and if all construction-related accessibility violations giving rise to the claim are corrected within 60 days of being served with this complaint.
ALSO, if your business has been served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55 of the Civil Code, you may also be entitled to a court stay and an early evaluation conference. If you choose to request a stay and early evaluation conference, you may also request to meet in person with the plaintiff and counsel for both parties, as well as experts if the parties so elect, at the subject premises no later than 30 days after issuance of the court order to jointly inspect the portions of the subject premises and review any conditions that are claimed to constitute a violation of a construction-related accessibility standard.
IN ADDITION, if your business is a small business that, over the previous three years, or the existence of the business if less than three years, employs 25 or fewer employees on average over that time period and meets specified gross receipts criteria, you may also be entitled to the court stay and early evaluation conference and your minimum statutory damages for each claim may be reduced to $2,000 for each offense, unless the violation was intentional, and if all the alleged construction-related accessibility violations are corrected within 30 days of being served with the complaint.
If you plan to correct the violations giving rise to the claim, you should take pictures and measurements or similar action to document the condition of the physical barrier asserted to be the basis for a violation before undertaking any corrective action in case a court needs to see the condition of a barrier before it was corrected.
The court will schedule the conference to be held within 70 days after you file the attached application form.
[If you are not a defendant with a CASp inspection report, until a form is adopted by the Judicial Council, you may use the attached form if you modify the form and supplement it with your declaration stating any one of the following:
(1)Until January 1, 2018, that the sites new construction or improvement on or after January 1, 2008, and before January 1, 2016, was approved pursuant to the local building permit and inspection process; that, to the best of your knowledge, there have been no modifications or alterations completed or commenced since the building department approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(2)That the sites new construction or improvement passed inspection by a local building department inspector who is a certified access specialist; that, to the best of your knowledge, there have been no modifications or alterations completed or commenced since that inspection approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(3)That your business is a small business with 25 or fewer employees and meets the gross receipts criteria set out in Section 55.56 of the Civil Code, and that all violations giving rise to the claim have been corrected, or will be corrected within 30 days of being served with the complaint.]
The court will also issue an immediate stay of the proceedings unless the plaintiff has obtained a temporary restraining order in the construction-related accessibility claim. You may obtain a copy of the application form, filing instructions, and additional information about the stay and early evaluation conference through the Judicial Council Internet Web site at www.courts.ca.gov/selfhelp-start.htm.
You may file the application after you are served with a summons and complaint, but no later than your first court pleading or appearance in this case, which is due within 30 days after you receive the summons and complaint. If you do not file the application, you will still need to file your reply to the lawsuit within 30 days after you receive the summons and complaint to contest it. You may obtain more information about how to represent yourself and how to file a reply without hiring an attorney at www.courts.ca.gov/selfhelp-start.htm.
You may file the application without the assistance of an attorney, but it may be in your best interest to immediately seek the assistance of an attorney experienced in disability access laws when you receive a summons and complaint. You may make an offer to settle the case, and it may be in your interest to put that offer in writing so that it may be considered under Section 55.55 of the Civil Code.
(2)An attorney who files a Notice of Substitution of Counsel to appear as counsel for a plaintiff who, acting in propria persona, had previously filed a complaint in an action that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the same time, cause to be served a copy of the application form specified in subdivision (c) and a copy of the notice specified in paragraph (1) upon the defendant on separate pages that shall be attached to the Notice of Substitution of Counsel.
(b)(1)Notwithstanding any other law, upon being served with a summons and complaint asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, a qualified defendant, or other defendant as defined in paragraph (2), may file a request for a court stay and early evaluation conference in the proceedings of that claim prior to or simultaneous with that defendants responsive pleading or other initial appearance in the action that includes the claim. If that defendant filed a timely request for stay and early evaluation conference before a responsive pleading was due, the period for filing a responsive pleading shall be tolled until the stay is lifted. Any responsive pleading filed simultaneously with a request for stay and early evaluation conference may be amended without prejudice, and the period for filing that amendment shall be tolled until the stay is lifted.
(2)This subdivision shall also apply to a defendant if any of the following apply:
(A)Until January 1, 2018, the sites new construction or improvement on or after January 1, 2008, and before January 1, 2016, was approved pursuant to the local building permit and inspection process, and the defendant declares with the application that, to the best of the defendants knowledge, there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, and that all violations have been corrected, or will be corrected within 60 days of being served with the complaint.
(B)The sites new construction or improvement was approved by a local public building department inspector who is a certified access specialist, and the defendant declares with the application that, to the best of the defendants knowledge, there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, and that all violations have been corrected, or will be corrected within 60 days of being served with the complaint.
(C)The defendant is a small business described in subdivision (f) of Section 55.56, and the defendant declares with the application that all violations have been corrected, or will be corrected within 30 days of being served with the complaint.
(D)The defendant is a business that has been served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55.
(3)Notwithstanding any other law, if the plaintiff had acted in propria persona in filing a complaint that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, a qualified defendant, or a defendant described by paragraph (2), who is served with a Notice of Substitution of Counsel shall have 30 days to file an application for a stay and an early evaluation conference. The application may be filed prior to or after the defendants filing of a responsive pleading or other initial appearance in the action that includes the claim, except that an application may not be filed in a claim in which an early evaluation conference or settlement conference has already been held on the claim.
(c)(1)An application for an early evaluation conference and stay by a qualified defendant shall include a signed declaration that states both of the following:
(A)The site identified in the complaint has been CASp-inspected or meets applicable standards, or is CASp determination pending or has been inspected by a CASp, and if the site is CASp-inspected or meets applicable standards, there have been no modifications completed or commenced since the date of inspection that may impact compliance with construction-related accessibility standards to the best of the defendants knowledge.
(B)An inspection report pertaining to the site has been issued by a CASp. The inspection report shall be provided to the court and the plaintiff at least 15 days prior to the court date set for the early evaluation conference.
(2)An application for an early evaluation conference and stay by a defendant described by subparagraph (A) of paragraph (2) of subdivision (b), which may be filed until January 1, 2018, shall include a signed declaration that states all of the following:
(A)The sites new construction or improvement was approved pursuant to the local building permit and inspection process on or after January 1, 2008, and before January 1, 2016.
(B)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(C)All construction-related violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served upon the defendant.
(3)An application for an early evaluation conference and stay by a defendant described in subparagraph (B) of paragraph (2) of subdivision (b) shall include a signed declaration that states all of the following:
(A)The sites new construction or improvement was approved by a local building department inspector who is a certified access specialist.
(B)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(C)All construction related violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served upon the defendant.
(4)An application for an early evaluation conference and stay by a defendant described by subparagraph (C) of paragraph (2) of subdivision (b) shall include the materials listed in paragraphs (5) and (6) of this subdivision, and shall include a signed declaration that states both of the following:
(A)The defendant is a small business that employs 25 or fewer employees and meets the gross receipts eligibility criteria provided in paragraph (2) of subdivision (f) of Section 55.56.
(B)All construction-related violations giving rise to the claim have been corrected, or will be corrected within 30 days of the complaint being served upon the defendant.
(5)An application for an early evaluation conference and stay by a small business defendant under paragraph (4) shall include evidence showing correction of all violations within 30 days of the service of the complaint and served upon the plaintiff with the reply unless the application is filed prior to completion of the corrections. In that event, the evidence shall be provided to the court and served upon the plaintiff within 10 days of the court order as provided in paragraph (4) of subdivision (d). This paragraph shall not be construed to extend the permissible time under subdivision (f) of Section 55.56 to make the corrections.
(6)An application for an early evaluation conference and stay by a small business defendant under paragraph (4) shall also include both of the following, which shall be confidential documents filed only with the court and not served upon or available to the plaintiff:
(A)Proof of the defendants number of employees, as shown by wage report forms filed with the Employment Development Department.
(B)Proof of the defendants average gross receipts for the previous three years, or for the existence of the business if less than three years, as shown by a federal or state tax document.
(7)An application for an early evaluation conference and stay by a defendant described by subparagraph (D) of paragraph (2) of subdivision (b) shall include a signed declaration that the defendant was served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55.
(8)The following provisional request and notice forms may be used and filed by a qualified defendant until forms are adopted by the Judicial Council for those purposes pursuant to subdivision (l):
PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE INSERTED(9)The provisional forms and any replacement Judicial Council forms shall include the defendants declaration of proof of service of the application, the notice of the courts order, and the courts order pursuant to subdivision (d).
(d)Upon the filing of an application for stay and early evaluation conference by a qualified defendant, or a defendant described by paragraph (2) of subdivision (b), the court shall immediately issue an order that does all of the following:
(1)Grants a 90-day stay of the proceedings with respect to the construction-related accessibility claim, unless the plaintiff has obtained temporary injunctive relief that is still in place for the construction-related accessibility claim.
(2)Schedules a mandatory early evaluation conference for a date as soon as possible from the date of the order, but in no event later than 70 days after issuance of the order, and in no event earlier than 50 days after the filing of the request.
(3)Directs the parties, and any other person whose authority is required to negotiate and enter into settlement, to appear in person at the time set for the conference. Appearance by counsel shall not satisfy the requirement that the parties or those with negotiation and settlement authority personally appear, provided, however, that the court may allow a party who is unable to attend in person due to his or her disability to participate in the hearing by telephone or other alternative means or through a representative authorized to settle the case.
(4)(A)Directs the qualified defendant to file with the court and serve on the plaintiff a copy of any relevant CASp inspection report at least 15 days before the date of the conference. The CASp inspection report is confidential and is available only as set forth in paragraph (5) of this subdivision and in paragraph (4) of subdivision (e).
(B)Directs a defendant described by subparagraph (A) or (B) of paragraph (2) of subdivision (b) who has filed a declaration stating that the violation or violations have been corrected, or will be corrected within 60 days of service of the complaint to file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days after the completion of the corrections.
(C)Directs a defendant described by subparagraph (C) of paragraph (2) of subdivision (b) who has filed a declaration stating that the violation or violations have been corrected, or will be corrected within 30 days of service of the complaint to file with the court and serve on the plaintiff within 10 days after issuance of the court order evidence of correction of the violation or violations, if that evidence showing correction was not filed previously with the application and served on the plaintiff.
(5)Directs the parties that the CASp inspection report may be disclosed only to the court, the parties to the action, the parties attorneys, those individuals employed or retained by the attorneys to assist in the litigation, and insurance representatives or others involved in the evaluation and settlement of the case.
(6)If the defendant so requests, directs the parties that no later than 30 days after issuance of the court order the parties and their counsel, accompanied by their experts if the parties so elect, shall meet in person at the subject premises. They shall jointly inspect the portions of the subject premises, and shall review any programmatic or policy issues, that are claimed to constitute a violation of a construction-related accessibility standard. The court may allow a plaintiff who is unable to meet in person at the subject premises to be excused from participating in a site visit or to participate by telephone or other alternative means for good cause. A plaintiff or plaintiffs counsel is not required, but may agree, to attend more than one in-person site meeting. A site inspection pursuant to this paragraph shall not affect the right of the parties to conduct otherwise appropriate discovery.
(7)Directs the plaintiff to file with the court and serve on the defendant at least 15 days before the date of the conference a statement that includes, to the extent reasonably known, for use solely for the purpose of the early evaluation conference, all of the following:
(A)An itemized list of specific conditions on the subject premises that are the basis of the claimed violations of construction-related accessibility standards in the plaintiffs complaint.
(B)The amount of damages claimed.
(C)The amount of attorneys fees and costs incurred to date, if any, that are being claimed.
(D)Any demand for settlement of the case in its entirety.
(e)(1)A party failing to comply with any court order may be subject to court sanction at the courts discretion.
(2)(A)The court shall lift the stay when the defendant has failed to file and serve the CASp inspection report prior to the early evaluation conference and has failed also to produce the report at the time of the early evaluation conference, unless the defendant shows good cause for that failure.
(B)The court shall lift the stay when a defendant described by paragraph (2) of subdivision (b) has failed to file and serve the evidence showing correction of the violation or violations as required by law.
(3)The court may lift the stay at the conclusion of the early evaluation conference upon a showing of good cause by the plaintiff. Good cause may include the defendants failure to make reasonably timely progress toward completion of corrections noted by a CASp.
(4)The CASp inspection report filed and served pursuant to subdivision (d) shall remain confidential throughout the stay and shall continue to be confidential until the conclusion of the claim, whether by dismissal, settlement, or final judgment, unless there is a showing of good cause by any party. Good cause may include the defendants failure to make reasonably timely progress toward completion of corrections noted by a CASp. The confidentiality of the inspection report shall terminate upon the conclusion of the claim, unless the owner of the report obtains a court order pursuant to the California Rules of Court to seal the record.
(f)All discussions at the early evaluation conference shall be subject to Section 1152 of the Evidence Code. It is the intent of the Legislature that the purpose of the evaluation conference shall include, but not be limited to, evaluation of all of the following, as applicable:
(1)Whether the defendant is entitled to the 90-day stay for some or all of the identified issues in the case, as a qualified defendant.
(2)The current condition of the site and the status of any plan of corrections, including whether the qualified defendant has corrected or is willing to correct the alleged violations, and the timeline for doing so.
(3)Whether subdivision (f) of Section 55.56 may be applicable to the case, and whether all violations giving rise to the claim have been corrected within the specified time periods.
(4)Whether the case, including any claim for damages or injunctive relief, can be settled in whole or in part.
(5)Whether the parties should share other information that may facilitate early evaluation and resolution of the dispute.
(g)Nothing in this section precludes any party from making an offer to compromise pursuant to Section 998 of the Code of Civil Procedure.
(h)For a claim involving a qualified defendant, as provided in paragraph (1) of subdivision (b), the court may schedule additional conferences and may extend the 90-day stay for good cause shown, but not to exceed one additional 90-day extension.
(i)Early evaluation conferences shall be conducted by a superior court judge or commissioner, or a court early evaluation conference officer. A commissioner shall not be qualified to conduct early evaluation conferences pursuant to this subdivision unless he or she has received training regarding disability access requirements imposed by the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), state laws that govern access to public facilities, and federal and state regulations adopted pursuant to those laws. For purposes of this subdivision, a court early evaluation conference officer means an attorney employed by the court who has received training regarding disability access requirements imposed by the federal Americans with Disabilities Act of 1990, state laws that govern access to public facilities, and federal and state regulations adopted pursuant to those laws. Attorneys serving in this capacity may also be utilized by the court for other purposes not related to these proceedings.
(j)Nothing in this part shall be deemed to make any inspection report, opinion, statement, or other finding or conclusion of a CASp binding on the court, or to abrogate in any manner the ultimate authority of the court to make all appropriate findings of fact and law. The CASp inspection report and any opinion, statement, finding, or conclusion therein shall be given the weight the trier of fact finds that it deserves.
(k)Nothing in this part shall be construed to invalidate or limit any California construction-related accessibility standard that provides greater or equal protection for the rights of individuals with disabilities than is afforded by the federal Americans with Disabilities Act (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.) and the federal regulations adopted pursuant to that act.
(l)(1)The Judicial Council shall, by January 1, 2013, prepare and post on its Internet Web site instructions and a form for use by a qualified defendant, or other defendant described by paragraph (2) of subdivision (b), to file an application for stay and early evaluation conference as provided in subdivisions (b) and (c), a form for the courts notice of stay and early evaluation conference, and any other forms appropriate to implement the provisions relating to early evaluation conferences. Until those forms are adopted, the Judicial Council shall post on its Internet Web site the provisional forms set forth in subdivision (c).
(2)Until the adoption of the forms as provided in paragraph (1), the provisional application form may be used by a defendant described by paragraph (2) of subdivision (b).
(3)In lieu of the provisions specified in number 3 of page 1 of the application form set forth in paragraph (7) of subdivision (c), the application shall include one of the following declarations of the defendant as to the basis for the application, as follows:
(A)That all of the following apply to a defendant described by subparagraph (A) of paragraph (2) of subdivision (b):
(i)The sites new construction or improvement was approved pursuant to the local building permit and inspection process on or after January 1, 2008, and before January 1, 2016.
(ii)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(iii)All the violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(B)That all of the following apply to a defendant described by subparagraph (B) of paragraph (2) of subdivision (b):
(i)The sites new construction or improvement was approved by a local public building department inspector who is a certified access specialist.
(ii)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(iii)All the violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(C)That both of the following apply to a defendant described by subparagraph (C) of paragraph (2) of subdivision (b):
(i)The defendant is a small business described in paragraph (2) of subdivision (f) of Section 55.56.
(ii)The violation or violations giving rise to the claim have been corrected, or will be corrected within 30 days of the complaint being served.
(4)In lieu of the provision specified in number 4(c) of page 1 of the application form set forth in paragraph (7) of subdivision (c), the application shall include a request that the court order the defendant to do either of the following:
(A)For a defendant who has filed a declaration stating that all violations have been corrected, or will be corrected within 60 days of service of the complaint, file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days of the completion of the corrections.
(B)For a defendant who is a small business that has filed a declaration stating that all the violations have been corrected, or will be corrected within 30 days of the service of the complaint, file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days after issuance of the court order, if that evidence showing correction was not filed previously with the application and served on the plaintiff.
(5)The Judicial Council shall also prepare and post on its Internet Web site instructions and cover pages to assist plaintiffs and defendants, respectively, to comply with their filing responsibilities under subdivision (d). The cover pages shall also provide for the partys declaration of proof of service of the pertinent document served under the court order.
(m)The stay provisions shall not apply to any construction-related accessibility claim in which the plaintiff has been granted temporary injunctive relief that remains in place.
(n)This section shall not apply to any action brought by the Attorney General, or by any district attorney, city attorney, or county counsel.
(o)The amendments to this section made by Senate Bill 1186 of the 201112 Regular Session of the Legislature shall apply only to claims filed on or after the operative date of that act. Nothing in this part is intended to affect any complaint filed before that date.
(p)Nothing in this part is intended to affect existing law regarding class action requirements.
SEC. 5.Section 425.50 of the Code of Civil Procedure is amended to read:425.50.(a)An allegation of a construction-related accessibility claim in a complaint, as defined in subdivision (a) of Section 55.52 of the Civil Code, shall state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim, including all of the following:
(1)A plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred, with sufficient information about the location of the alleged barrier to enable a reasonable person to identify the access barrier.
(2)The way in which the barrier denied the individual full and equal use or access, or in which it deterred the individual, on each particular occasion.
(3)The date or dates of each particular occasion on which the claimant encountered the specific access barrier, or on which he or she was deterred.
(4)(A)Except in complaints that allege physical injury or damage to property, a complaint filed by or on behalf of a high-frequency litigant shall also state all of the following:
(i)Whether the complaint is filed by, or on behalf of, a high-frequency litigant.
(ii)In the case of a high-frequency litigant who is a plaintiff, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint.
(iii)In the case of a high-frequency litigant who is a plaintiff, the reason the individual was in the geographic area of the defendants business.
(iv)In the case of a high-frequency litigant who is a plaintiff, the reason why the individual desired to access the defendants business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose.
(B)As used in this section high-frequency litigant has the same meaning as set forth in subdivision (b) of Section 425.55.
(b)(1)A complaint alleging a construction-related accessibility claim, as those terms are defined in subdivision (a) of Section 55.3 of the Civil Code, shall be verified by the plaintiff. A complaint filed without verification shall be subject to a motion to strike.
(2)A complaint alleging a construction-related accessibility claim filed by, or on behalf of, a high-frequency litigant shall state in the caption ACTION SUBJECT TO THE SUPPLEMENTAL FEE IN GOVERNMENT CODE SECTION 70616.5.
(c)A complaint alleging a construction-related accessibility claim shall be signed by at least one attorney of record in the attorneys individual name, or, if the party is not represented by an attorney, shall be signed by the party. By signing the complaint, the attorney or unrepresented party is certifying that, to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
(1)It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(2)The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
(3)The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4)The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(d)A court may, after notice and a reasonable opportunity to respond, determine whether subdivision (c) has been violated and, if so, impose sanctions as provided in Section 128.7 for violations of subdivision (b) of Section 128.7.
(e)Nothing in this section shall limit the right of a plaintiff to amend a complaint under Section 472, or with leave of the court under Section 473. However, an amended pleading alleging a construction-related accessibility claim shall be pled as required by subdivision (a).
(f)The determination whether an attorney is a high-frequency litigant shall be made solely on the basis of the verified complaint and any other publicly available documents. Notwithstanding any other law, no party to the proceeding may conduct discovery with respect to whether an attorney is a high-frequency litigant.
(g)This section shall become operative on January 1, 2013.
SEC. 6.Section 425.55 is added to the Code of Civil Procedure, to read:425.55.(a)The Legislature finds and declares all of the following:
(1)Protection of the civil rights of persons with disabilities is of the utmost importance to this state, and private enforcement is the essential means of achieving that goal, as the law has been designed.
(2)According to information from the California Commission on Disability Access, more than one-half, or 54 percent, of all construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms. Forty-six percent of all complaints were filed by a total of 14 parties. Therefore, a very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year. Moreover, these lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the accessibility violation. This practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations as they are entitled to have full and equal access under the states Unruh Civil Rights Act (Section 51 of the Civil Code) and the federal Americans with Disability Act of 1990 (Public Law 101-336).
(3)Therefore, given these special and unique circumstances, the provisions of this section are warranted for this limited group of plaintiffs.
(b)For the purposes of this article, high-frequency litigant means a person, except as specified in paragraph (3), who utilizes court resources in actions arising from alleged construction-related access violations at such a high level that it is appropriate that additional safeguards apply so as to ensure that the claims are warranted. A high-frequency litigant means one or more of the following:
(1)A plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.
(2)An attorney who has represented as attorney of record 10 or more high-frequency litigant plaintiffs in actions that were resolved within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation, excluding all of the following actions:
(A)An action in which an early evaluation conference was held pursuant to Section 55.54 of the Civil Code.
(B)An action in which judgment was entered in favor of the plaintiff.
(C)An action in which the construction-related accessibility violations alleged in the complaint were remedied in whole or in part, or a favorable result was achieved, after the plaintiff filed a complaint or provided a demand letter, as defined in Section 55.3 of the Civil Code.
(3)This section does not apply to an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment to represent a client in asserting a construction-related accessibility claim, or the client in such a case.
SEC. 7.Section 68085.35 is added to the Government Code, immediately following Section 68085.3, to read:68085.35.(a)Fees collected under Section 70616.5 shall be deposited in a bank account established by the Administrative Office of the Courts for deposit of fees collected by the courts.
(b)For each one-thousand-dollar ($1,000) fee listed in subdivision (a), the Administrative Office of the Courts shall distribute specified amounts as follows:
(1)Five hundred dollars ($500) to the General Fund for use, upon appropriation by the Legislature, by the California Commission on Disability Access.
(2)The remainder of the fee to the Trial Court Trust Fund.
(c)If any of the fees listed in subdivision (a) are reduced or partially waived, the amount of the reduction or partial waiver shall be deducted from the amount to be distributed to each fund in the same proportion as the amount each distribution bears to the total amount of the fee.
(d)No revenue collected pursuant to Section 70616.5 shall be used to supplant existing program funding of the California Commission on Disability Access.
SEC. 8.Section 70616.5 is added to the Government Code, to read:70616.5.(a)In addition to the first paper filing fee required by Section 70611 or 70613, a single high-frequency litigant fee shall be paid to the clerk on behalf of a plaintiff who is a high-frequency litigant, as that term is defined in Section 425.55 of the Code of Civil Procedure, at the time of the filing of the first paper if the complaint alleges a construction-related accessibility claim, as those terms are defined in subdivision (a) of Section 55.3 of the Civil Code.
(b)The fee established by this section shall be one thousand dollars ($1,000). The fee shall be transmitted as provided in Section 68085.35.
(c)Failure to pay the fees required by this section shall have the same effect as the failure to pay a filing fee, and shall be subject to the same enforcement and penalties.
SEC. 9.The Legislature finds and declares that Section 3 of this act limits the publics right of access to public documents within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest and the need for protecting that interest:
(a)The interest protected by this limitation is the privacy rights of litigants.
(b)The need for protecting those interests is to preclude the chilling effect on litigation if public disclosure were required.
SEC. 10.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SEC. 11.This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to ensure that the courts are not overburdened and are able to provide access to the judicial system for all persons seeking redress of their construction-related accessibility claims, it is necessary that these reasonable requirements placed on high-frequency litigants take effect immediately.
(a)For purposes of this section, the following apply:
(1)Complaint means a civil complaint that is filed or is to be filed with a court and is sent to or served upon a defendant on the basis of one or more construction-related accessibility claims, as defined in this section.
(2)Construction-related accessibility claim means any claim of a violation of any construction-related accessibility standard, as defined by paragraph (6) of subdivision (a) of Section 55.52, with respect to a place of public accommodation. Construction-related accessibility claim does not include a claim of interference with housing within the meaning of paragraph (2) of subdivision (b) of Section 54.1, or any claim of interference caused by something other than the construction-related accessibility condition of the property, including, but not limited to, the conduct of any person.
(3)Demand for money means a prelitigation written document or oral statement that is provided or issued to a building owner or tenant, or the owners or tenants agent or employee, that does all of the following:
(A)Alleges that the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2).
(B)Contains or makes a request or demand for money or an offer or agreement to accept money.
(C)Is provided or issued whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(4)Demand letter means a prelitigation written document that is provided to a building owner or tenant, or the owners or tenants agent or employee, that alleges the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2), and is provided whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(b)An attorney shall provide the following items with each demand letter or complaint sent to or served upon a defendant or potential defendant alleging a construction-related accessibility claim:
(1)A written advisory on the form described in subparagraph (B), or, until that form is available, on a separate page or pages that are clearly distinguishable from the demand letter or complaint. The advisory shall not be required in subsequent communications following the initial demand letter or initial complaint unless a new construction-related accessibility claim is asserted in the subsequent demand letter or amended complaint.
(A)The advisory shall state as follows:
STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY INFORMATION FOR BUILDING OWNERS AND TENANTS
This information is available in English, Spanish, Chinese, Vietnamese, and Korean through the Judicial Council of California. Persons with visual impairments can get assistance in viewing this form through the Judicial Council Internet Web site at www.courts.ca.gov.
California law requires that you receive this information because the demand letter or court complaint you received with this document claims that your building or property does not comply with one or more existing construction-related accessibility laws or regulations protecting the civil rights of persons with disabilities to access public places.
YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability access laws is a serious and significant responsibility that applies to all California building owners and tenants with buildings open for business to the public. You may obtain information about your legal obligations and how to comply with disability access laws through the Division of the State Architect at www.dgs.ca.gov. Information is also available from the California Commission on Disability Access at www.ccda.ca.gov/guide.htm.
YOU HAVE IMPORTANT LEGAL RIGHTS. The allegations made in the accompanying demand letter or court complaint do not mean that you are required to pay any money unless and until a court finds you liable. Moreover, RECEIPT OF A DEMAND LETTER OR COURT COMPLAINT AND THIS ADVISORY DOES NOT NECESSARILY MEAN YOU WILL BE FOUND LIABLE FOR ANYTHING. You will have the right if you are later sued to fully present your explanation why you believe you have not in fact violated disability access laws or have corrected the violation or violations giving rise to the claim.
You have the right to seek assistance or advice about this demand letter or court complaint from any person of your choice. If you have insurance, you may also wish to contact your insurance provider. Your best interest may be served by seeking legal advice or representation from an attorney, but you may also represent yourself and file the necessary court papers to protect your interests if you are served with a court complaint. If you have hired an attorney to represent you, you should immediately notify your attorney.
If a court complaint has been served on you, you will get a separate advisory notice with the complaint advising you of special options and procedures available to you under certain conditions.
ADDITIONAL THINGS YOU SHOULD KNOW:
ATTORNEY MISCONDUCT. Except for limited circumstances, state law generally requires that a prelitigation demand letter from an attorney MAY NOT MAKE A REQUEST OR DEMAND FOR MONEY OR AN OFFER OR AGREEMENT TO ACCEPT MONEY. Moreover, a demand letter from an attorney MUST INCLUDE THE ATTORNEYS STATE BAR LICENSE NUMBER.
If you believe the attorney who provided you with this notice and prelitigation demand letter is not complying with state law, you may send a copy of the demand letter you received from the attorney to the State Bar of California by facsimile transmission to 1-415-538-2171, or by mail to the State Bar of California, 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
REDUCING YOUR DAMAGES. If you are a small business owner and correct all of the construction-related violations that are the basis of the complaint against you within 30 days of being served with the complaint, you may qualify for reduced damages. You may wish to consult an attorney to obtain legal advice. You may also wish to contact the California Commission on Disability Access for additional information about the rights and obligations of business owners.
COMMERCIAL TENANT. If you are a commercial tenant, you may not be responsible for ensuring that some or all portions of the premises you lease for your business, including common areas such as parking lots, are accessible to the public because those areas may be the responsibility of your landlord. You may want to refer to your lease agreement and consult with an attorney or contact your landlord, to determine if your landlord is responsible for maintaining and improving some or all of the areas you lease.
(B)On or before July 1, 2016, the Judicial Council shall update the advisory form that may be used by an attorney to comply with the requirements of subparagraph (A). The advisory form shall be in substantially the same format and include all of the text set forth in subparagraph (A). The advisory form shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the advisory form is available in additional languages, and the Judicial Council Internet Web site address where the different versions of the advisory form are located. The advisory form shall include Internet Web site information for the Division of the State Architect and the California Commission on Disability Access.
(2)A verified answer form developed by the Judicial Council, which allows a defendant to respond to the complaint in the event a complaint is filed.
(A)The answer form shall be written in plain language and allow the defendant to state any relevant information affecting the defendants liability or damages including, but not limited to, the following:
(i)Specific denials of the allegations in the complaint, including whether the plaintiff has demonstrated that he or she was denied full and equal access to the place of public accommodation on a particular occasion pursuant to Section 55.56.
(ii)Potential affirmative defenses available to the defendant, including:
(I)An assertion that the defendants landlord is responsible for ensuring that some or all of the property leased by the defendant, including the areas at issue in the complaint, are accessible to the public. The defendant shall provide facts supporting that assertion, and the name and contact information of the defendants landlord.
(II)Any other affirmative defense the defendant wishes to assert.
(iii)A request to meet in person at the subject premises, if the defendant qualifies for an early evaluation conference pursuant to Section 55.54.
(iv)Any other information that the defendant believes is relevant to his or her potential liability or damages, including that the defendant qualifies for reduced damages pursuant to paragraph (1) or (2) of subdivision (f) of Section 55.56, and, if so, any facts supporting that assertion.
(B)The answer form shall provide instructions to a defendant who wishes to file the form as an answer to the complaint. The form shall also notify the defendant that he or she may use the completed form as an informal response to a demand letter or for settlement discussion purposes.
(C)On or before July 1, 2016, the Judicial Council shall adopt the answer form that may be used by an attorney to comply with the requirements of this paragraph, and shall post the answer form on the Judicial Council Internet Web site.
(c)Subdivision (b) applies only to a demand letter or complaint made by an attorney. This section does not affect the right to file a civil complaint under any other law or regulation protecting the physical access rights of persons with disabilities. Additionally, this section does not require a party to provide or send a demand letter to another party before proceeding against that party with a civil complaint.
(d)This section does not apply to an action brought by the Attorney General or any district attorney, city attorney, or county counsel.
SEC. 2.Section 55.32 of the Civil Code, as added by Section 5 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Contemporaneously with providing the demand letter, send a copy of the demand letter to the State Bar of California by facsimile transmission at 1-415-538-2171, or by mail to 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
(3)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall do both of the following:
(1)Send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(2)Notify the California Commission on Disability Access within five business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of the following information in a standard format specified by the commission:
(A)The date of the judgment, settlement, or dismissal.
(B)Whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3.
(C)If the construction-related accessibility violations alleged in the complaint were not remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3, whether or not another favorable result was achieved after the plaintiff filed the complaint or provided the demand letter.
(D)Whether or not the defendant submitted an application for an early evaluation conference and stay pursuant to Section 55.54, whether the defendant requested a site inspection, the date of any early evaluation conference, and the date of any site inspection.
(c)A violation of paragraph (2) or (3) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney where a copy of the complaint, demand letter, or notification of a case outcome is not sent to the California Commission on Disability Access within five business days, or a copy of the demand letter is not sent to the State Bar within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the complaint, demand letter, or notification of a case outcome to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (3) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the State Bar of California or the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter or complaint letter, complaint, or notification of a case outcome sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from either the sender or recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Commencing July 31, 2013, and annually each July 31 thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Committees on Judiciary, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints letters, complaints, and notifications of case outcomes it receives as provided in Section 8299.08 of the Government Code.
(h)Paragraphs (2) and (3) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(i)This section shall become operative on January 1, 2013.
(j)This section shall remain in effect only until January 1, 2019, and as of that date is repealed.
SEC. 3.Section 55.32 of the Civil Code, as added by Section 6 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall do both of the following:
(1)Send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(2)Notify the California Commission on Disability Access within five business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of the following information in a standard format specified by the commission:
(A)The date of the judgment, settlement, or dismissal.
(B)Whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3.
(C)If the construction-related accessibility violations alleged in the complaint were not remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3, whether or not another favorable result was achieved after the plaintiff filed the complaint or provided the demand letter.
(D)Whether or not the defendant submitted an application for an early evaluation conference and stay pursuant to Section 55.54, whether the defendant requested a site inspection, the date of any early evaluation conference, and the date of any site inspection.
(c)A violation of paragraph (2) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney if a copy of the demand letter, complaint, or notification of a case outcome is not sent to the California Commission on Disability Access within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the demand letter, complaint, or notification of a case outcome to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (2) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter or notification of a case outcome sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from the recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Notwithstanding Section 10231.5 of the Government Code, on or before July 31, 2019, and annually thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Judiciary Committees, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints letters, complaints, and notifications of case outcomes it receives as provided in Section 8299.08 of the Government Code.
(h)The expiration of any ground for discipline of an attorney shall not affect the imposition of discipline for any act prior to the expiration. An act or omission that constituted cause for imposition of discipline of an attorney when committed or omitted prior to January 1, 2019, shall continue to constitute cause for the imposition of discipline of that attorney on and after January 1, 2019.
(i)Paragraph (2) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(j)This section shall become operative on January 1, 2019.
SEC. 4.Section 55.54 of the Civil Code is amended to read:55.54.(a)(1)An attorney who causes a summons and complaint to be served in an action that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the same time, cause to be served a copy of the application form specified in subdivision (c) and a copy of the following notice, including, until January 1, 2013, the bracketed text, to the defendant on separate papers that shall be served with the summons and complaint:
ADVISORY NOTICE TO DEFENDANT
YOU MAY BE ENTITLED TO ASK FOR A COURT STAY (AN ORDER TEMPORARILY STOPPING ANY LAWSUIT) AND EARLY EVALUATION CONFERENCE IN THIS LAWSUIT AND MAY BE ASSESSED REDUCED STATUTORY DAMAGES IF YOU MEET CERTAIN CONDITIONS.
If the construction-related accessibility claim pertains to a site that has a Certified Access Specialist (CASp) inspection report for that site, or to a site where new construction or improvement was approved after January 1, 2008, by the local building permit and inspection process, you may make an immediate request for a court stay and early evaluation conference in the construction-related accessibility claim by filing the attached application form with the court. You may be entitled to the court stay and early evaluation conference regarding the accessibility claim only if ALL of the statements in the application form applicable to you are true.
FURTHER, if you are a defendant described above (with a CASp inspection report or with new construction after January 1, 2008), and, to the best of your knowledge, there have been no modifications or alterations completed or commenced since the CASp report or building department approval of the new construction or improvement that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, your liability for minimum statutory damages may be reduced to $1,000 for each offense, unless the violation was intentional, and if all construction-related accessibility violations giving rise to the claim are corrected within 60 days of being served with this complaint.
ALSO, if your business has been served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55 of the Civil Code, you may also be entitled to a court stay and an early evaluation conference. If you choose to request a stay and early evaluation conference, you may also request to meet in person with the plaintiff and counsel for both parties, as well as experts if the parties so elect, at the subject premises no later than 30 days after issuance of the court order to jointly inspect the portions of the subject premises and review any conditions that are claimed to constitute a violation of a construction-related accessibility standard.
IN ADDITION, if your business is a small business that, over the previous three years, or the existence of the business if less than three years, employs 25 or fewer employees on average over that time period and meets specified gross receipts criteria, you may also be entitled to the court stay and early evaluation conference and your minimum statutory damages for each claim may be reduced to $2,000 for each offense, unless the violation was intentional, and if all the alleged construction-related accessibility violations are corrected within 30 days of being served with the complaint.
If you plan to correct the violations giving rise to the claim, you should take pictures and measurements or similar action to document the condition of the physical barrier asserted to be the basis for a violation before undertaking any corrective action in case a court needs to see the condition of a barrier before it was corrected.
The court will schedule the conference to be held within 70 days after you file the attached application form.
[If you are not a defendant with a CASp inspection report, until a form is adopted by the Judicial Council, you may use the attached form if you modify the form and supplement it with your declaration stating any one of the following:
(1)Until January 1, 2018, that the sites new construction or improvement on or after January 1, 2008, and before January 1, 2016, was approved pursuant to the local building permit and inspection process; that, to the best of your knowledge, there have been no modifications or alterations completed or commenced since the building department approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(2)That the sites new construction or improvement passed inspection by a local building department inspector who is a certified access specialist; that, to the best of your knowledge, there have been no modifications or alterations completed or commenced since that inspection approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(3)That your business is a small business with 25 or fewer employees and meets the gross receipts criteria set out in Section 55.56 of the Civil Code, and that all violations giving rise to the claim have been corrected, or will be corrected within 30 days of being served with the complaint.]
The court will also issue an immediate stay of the proceedings unless the plaintiff has obtained a temporary restraining order in the construction-related accessibility claim. You may obtain a copy of the application form, filing instructions, and additional information about the stay and early evaluation conference through the Judicial Council Internet Web site at www.courts.ca.gov/selfhelp-start.htm.
You may file the application after you are served with a summons and complaint, but no later than your first court pleading or appearance in this case, which is due within 30 days after you receive the summons and complaint. If you do not file the application, you will still need to file your reply to the lawsuit within 30 days after you receive the summons and complaint to contest it. You may obtain more information about how to represent yourself and how to file a reply without hiring an attorney at www.courts.ca.gov/selfhelp-start.htm.
You may file the application without the assistance of an attorney, but it may be in your best interest to immediately seek the assistance of an attorney experienced in disability access laws when you receive a summons and complaint. You may make an offer to settle the case, and it may be in your interest to put that offer in writing so that it may be considered under Section 55.55 of the Civil Code.
(2)An attorney who files a Notice of Substitution of Counsel to appear as counsel for a plaintiff who, acting in propria persona, had previously filed a complaint in an action that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the same time, cause to be served a copy of the application form specified in subdivision (c) and a copy of the notice specified in paragraph (1) upon the defendant on separate pages that shall be attached to the Notice of Substitution of Counsel.
(b)(1)Notwithstanding any other law, upon being served with a summons and complaint asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, a qualified defendant, or other defendant as defined in paragraph (2), may file a request for a court stay and early evaluation conference in the proceedings of that claim prior to or simultaneous with that defendants responsive pleading or other initial appearance in the action that includes the claim. If that defendant filed a timely request for stay and early evaluation conference before a responsive pleading was due, the period for filing a responsive pleading shall be tolled until the stay is lifted. Any responsive pleading filed simultaneously with a request for stay and early evaluation conference may be amended without prejudice, and the period for filing that amendment shall be tolled until the stay is lifted.
(2)This subdivision shall also apply to a defendant if any of the following apply:
(A)Until January 1, 2018, the sites new construction or improvement on or after January 1, 2008, and before January 1, 2016, was approved pursuant to the local building permit and inspection process, and the defendant declares with the application that, to the best of the defendants knowledge, there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, and that all violations have been corrected, or will be corrected within 60 days of being served with the complaint.
(B)The sites new construction or improvement was approved by a local public building department inspector who is a certified access specialist, and the defendant declares with the application that, to the best of the defendants knowledge, there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, and that all violations have been corrected, or will be corrected within 60 days of being served with the complaint.
(C)The defendant is a small business described in subdivision (f) of Section 55.56, and the defendant declares with the application that all violations have been corrected, or will be corrected within 30 days of being served with the complaint.
(D)The defendant is a business that has been served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55.
(3)Notwithstanding any other law, if the plaintiff had acted in propria persona in filing a complaint that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, a qualified defendant, or a defendant described by paragraph (2), who is served with a Notice of Substitution of Counsel shall have 30 days to file an application for a stay and an early evaluation conference. The application may be filed prior to or after the defendants filing of a responsive pleading or other initial appearance in the action that includes the claim, except that an application may not be filed in a claim in which an early evaluation conference or settlement conference has already been held on the claim.
(c)(1)An application for an early evaluation conference and stay by a qualified defendant shall include a signed declaration that states both of the following:
(A)The site identified in the complaint has been CASp-inspected or meets applicable standards, or is CASp determination pending or has been inspected by a CASp, and if the site is CASp-inspected or meets applicable standards, there have been no modifications completed or commenced since the date of inspection that may impact compliance with construction-related accessibility standards to the best of the defendants knowledge.
(B)An inspection report pertaining to the site has been issued by a CASp. The inspection report shall be provided to the court and the plaintiff at least 15 days prior to the court date set for the early evaluation conference.
(2)An application for an early evaluation conference and stay by a defendant described by subparagraph (A) of paragraph (2) of subdivision (b), which may be filed until January 1, 2018, shall include a signed declaration that states all of the following:
(A)The sites new construction or improvement was approved pursuant to the local building permit and inspection process on or after January 1, 2008, and before January 1, 2016.
(B)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(C)All construction-related violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served upon the defendant.
(3)An application for an early evaluation conference and stay by a defendant described in subparagraph (B) of paragraph (2) of subdivision (b) shall include a signed declaration that states all of the following:
(A)The sites new construction or improvement was approved by a local building department inspector who is a certified access specialist.
(B)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(C)All construction related violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served upon the defendant.
(4)An application for an early evaluation conference and stay by a defendant described by subparagraph (C) of paragraph (2) of subdivision (b) shall include the materials listed in paragraphs (5) and (6) of this subdivision, and shall include a signed declaration that states both of the following:
(A)The defendant is a small business that employs 25 or fewer employees and meets the gross receipts eligibility criteria provided in paragraph (2) of subdivision (f) of Section 55.56.
(B)All construction-related violations giving rise to the claim have been corrected, or will be corrected within 30 days of the complaint being served upon the defendant.
(5)An application for an early evaluation conference and stay by a small business defendant under paragraph (4) shall include evidence showing correction of all violations within 30 days of the service of the complaint and served upon the plaintiff with the reply unless the application is filed prior to completion of the corrections. In that event, the evidence shall be provided to the court and served upon the plaintiff within 10 days of the court order as provided in paragraph (4) of subdivision (d). This paragraph shall not be construed to extend the permissible time under subdivision (f) of Section 55.56 to make the corrections.
(6)An application for an early evaluation conference and stay by a small business defendant under paragraph (4) shall also include both of the following, which shall be confidential documents filed only with the court and not served upon or available to the plaintiff:
(A)Proof of the defendants number of employees, as shown by wage report forms filed with the Employment Development Department.
(B)Proof of the defendants average gross receipts for the previous three years, or for the existence of the business if less than three years, as shown by a federal or state tax document.
(7)An application for an early evaluation conference and stay by a defendant described by subparagraph (D) of paragraph (2) of subdivision (b) shall include a signed declaration that the defendant was served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55.
(8)The following provisional request and notice forms may be used and filed by a qualified defendant until forms are adopted by the Judicial Council for those purposes pursuant to subdivision (l):
PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE INSERTED(9)The provisional forms and any replacement Judicial Council forms shall include the defendants declaration of proof of service of the application, the notice of the courts order, and the courts order pursuant to subdivision (d).
(d)Upon the filing of an application for stay and early evaluation conference by a qualified defendant, or a defendant described by paragraph (2) of subdivision (b), the court shall immediately issue an order that does all of the following:
(1)Grants a 90-day stay of the proceedings with respect to the construction-related accessibility claim, unless the plaintiff has obtained temporary injunctive relief that is still in place for the construction-related accessibility claim.
(2)Schedules a mandatory early evaluation conference for a date as soon as possible from the date of the order, but in no event later than 70 days after issuance of the order, and in no event earlier than 50 days after the filing of the request.
(3)Directs the parties, and any other person whose authority is required to negotiate and enter into settlement, to appear in person at the time set for the conference. Appearance by counsel shall not satisfy the requirement that the parties or those with negotiation and settlement authority personally appear, provided, however, that the court may allow a party who is unable to attend in person due to his or her disability to participate in the hearing by telephone or other alternative means or through a representative authorized to settle the case.
(4)(A)Directs the qualified defendant to file with the court and serve on the plaintiff a copy of any relevant CASp inspection report at least 15 days before the date of the conference. The CASp inspection report is confidential and is available only as set forth in paragraph (5) of this subdivision and in paragraph (4) of subdivision (e).
(B)Directs a defendant described by subparagraph (A) or (B) of paragraph (2) of subdivision (b) who has filed a declaration stating that the violation or violations have been corrected, or will be corrected within 60 days of service of the complaint to file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days after the completion of the corrections.
(C)Directs a defendant described by subparagraph (C) of paragraph (2) of subdivision (b) who has filed a declaration stating that the violation or violations have been corrected, or will be corrected within 30 days of service of the complaint to file with the court and serve on the plaintiff within 10 days after issuance of the court order evidence of correction of the violation or violations, if that evidence showing correction was not filed previously with the application and served on the plaintiff.
(5)Directs the parties that the CASp inspection report may be disclosed only to the court, the parties to the action, the parties attorneys, those individuals employed or retained by the attorneys to assist in the litigation, and insurance representatives or others involved in the evaluation and settlement of the case.
(6)If the defendant so requests, directs the parties that no later than 30 days after issuance of the court order the parties and their counsel, accompanied by their experts if the parties so elect, shall meet in person at the subject premises. They shall jointly inspect the portions of the subject premises, and shall review any programmatic or policy issues, that are claimed to constitute a violation of a construction-related accessibility standard. The court may allow a plaintiff who is unable to meet in person at the subject premises to be excused from participating in a site visit or to participate by telephone or other alternative means for good cause. A plaintiff or plaintiffs counsel is not required, but may agree, to attend more than one in-person site meeting. A site inspection pursuant to this paragraph shall not affect the right of the parties to conduct otherwise appropriate discovery.
(7)Directs the plaintiff to file with the court and serve on the defendant at least 15 days before the date of the conference a statement that includes, to the extent reasonably known, for use solely for the purpose of the early evaluation conference, all of the following:
(A)An itemized list of specific conditions on the subject premises that are the basis of the claimed violations of construction-related accessibility standards in the plaintiffs complaint.
(B)The amount of damages claimed.
(C)The amount of attorneys fees and costs incurred to date, if any, that are being claimed.
(D)Any demand for settlement of the case in its entirety.
(e)(1)A party failing to comply with any court order may be subject to court sanction at the courts discretion.
(2)(A)The court shall lift the stay when the defendant has failed to file and serve the CASp inspection report prior to the early evaluation conference and has failed also to produce the report at the time of the early evaluation conference, unless the defendant shows good cause for that failure.
(B)The court shall lift the stay when a defendant described by paragraph (2) of subdivision (b) has failed to file and serve the evidence showing correction of the violation or violations as required by law.
(3)The court may lift the stay at the conclusion of the early evaluation conference upon a showing of good cause by the plaintiff. Good cause may include the defendants failure to make reasonably timely progress toward completion of corrections noted by a CASp.
(4)The CASp inspection report filed and served pursuant to subdivision (d) shall remain confidential throughout the stay and shall continue to be confidential until the conclusion of the claim, whether by dismissal, settlement, or final judgment, unless there is a showing of good cause by any party. Good cause may include the defendants failure to make reasonably timely progress toward completion of corrections noted by a CASp. The confidentiality of the inspection report shall terminate upon the conclusion of the claim, unless the owner of the report obtains a court order pursuant to the California Rules of Court to seal the record.
(f)All discussions at the early evaluation conference shall be subject to Section 1152 of the Evidence Code. It is the intent of the Legislature that the purpose of the evaluation conference shall include, but not be limited to, evaluation of all of the following, as applicable:
(1)Whether the defendant is entitled to the 90-day stay for some or all of the identified issues in the case, as a qualified defendant.
(2)The current condition of the site and the status of any plan of corrections, including whether the qualified defendant has corrected or is willing to correct the alleged violations, and the timeline for doing so.
(3)Whether subdivision (f) of Section 55.56 may be applicable to the case, and whether all violations giving rise to the claim have been corrected within the specified time periods.
(4)Whether the case, including any claim for damages or injunctive relief, can be settled in whole or in part.
(5)Whether the parties should share other information that may facilitate early evaluation and resolution of the dispute.
(g)Nothing in this section precludes any party from making an offer to compromise pursuant to Section 998 of the Code of Civil Procedure.
(h)For a claim involving a qualified defendant, as provided in paragraph (1) of subdivision (b), the court may schedule additional conferences and may extend the 90-day stay for good cause shown, but not to exceed one additional 90-day extension.
(i)Early evaluation conferences shall be conducted by a superior court judge or commissioner, or a court early evaluation conference officer. A commissioner shall not be qualified to conduct early evaluation conferences pursuant to this subdivision unless he or she has received training regarding disability access requirements imposed by the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), state laws that govern access to public facilities, and federal and state regulations adopted pursuant to those laws. For purposes of this subdivision, a court early evaluation conference officer means an attorney employed by the court who has received training regarding disability access requirements imposed by the federal Americans with Disabilities Act of 1990, state laws that govern access to public facilities, and federal and state regulations adopted pursuant to those laws. Attorneys serving in this capacity may also be utilized by the court for other purposes not related to these proceedings.
(j)Nothing in this part shall be deemed to make any inspection report, opinion, statement, or other finding or conclusion of a CASp binding on the court, or to abrogate in any manner the ultimate authority of the court to make all appropriate findings of fact and law. The CASp inspection report and any opinion, statement, finding, or conclusion therein shall be given the weight the trier of fact finds that it deserves.
(k)Nothing in this part shall be construed to invalidate or limit any California construction-related accessibility standard that provides greater or equal protection for the rights of individuals with disabilities than is afforded by the federal Americans with Disabilities Act (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.) and the federal regulations adopted pursuant to that act.
(l)(1)The Judicial Council shall, by January 1, 2013, prepare and post on its Internet Web site instructions and a form for use by a qualified defendant, or other defendant described by paragraph (2) of subdivision (b), to file an application for stay and early evaluation conference as provided in subdivisions (b) and (c), a form for the courts notice of stay and early evaluation conference, and any other forms appropriate to implement the provisions relating to early evaluation conferences. Until those forms are adopted, the Judicial Council shall post on its Internet Web site the provisional forms set forth in subdivision (c).
(2)Until the adoption of the forms as provided in paragraph (1), the provisional application form may be used by a defendant described by paragraph (2) of subdivision (b).
(3)In lieu of the provisions specified in number 3 of page 1 of the application form set forth in paragraph (7) of subdivision (c), the application shall include one of the following declarations of the defendant as to the basis for the application, as follows:
(A)That all of the following apply to a defendant described by subparagraph (A) of paragraph (2) of subdivision (b):
(i)The sites new construction or improvement was approved pursuant to the local building permit and inspection process on or after January 1, 2008, and before January 1, 2016.
(ii)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(iii)All the violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(B)That all of the following apply to a defendant described by subparagraph (B) of paragraph (2) of subdivision (b):
(i)The sites new construction or improvement was approved by a local public building department inspector who is a certified access specialist.
(ii)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(iii)All the violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(C)That both of the following apply to a defendant described by subparagraph (C) of paragraph (2) of subdivision (b):
(i)The defendant is a small business described in paragraph (2) of subdivision (f) of Section 55.56.
(ii)The violation or violations giving rise to the claim have been corrected, or will be corrected within 30 days of the complaint being served.
(4)In lieu of the provision specified in number 4(c) of page 1 of the application form set forth in paragraph (7) of subdivision (c), the application shall include a request that the court order the defendant to do either of the following:
(A)For a defendant who has filed a declaration stating that all violations have been corrected, or will be corrected within 60 days of service of the complaint, file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days of the completion of the corrections.
(B)For a defendant who is a small business that has filed a declaration stating that all the violations have been corrected, or will be corrected within 30 days of the service of the complaint, file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days after issuance of the court order, if that evidence showing correction was not filed previously with the application and served on the plaintiff.
(5)The Judicial Council shall also prepare and post on its Internet Web site instructions and cover pages to assist plaintiffs and defendants, respectively, to comply with their filing responsibilities under subdivision (d). The cover pages shall also provide for the partys declaration of proof of service of the pertinent document served under the court order.
(m)The stay provisions shall not apply to any construction-related accessibility claim in which the plaintiff has been granted temporary injunctive relief that remains in place.
(n)This section shall not apply to any action brought by the Attorney General, or by any district attorney, city attorney, or county counsel.
(o)The amendments to this section made by Senate Bill 1186 of the 201112 Regular Session of the Legislature shall apply only to claims filed on or after the operative date of that act. Nothing in this part is intended to affect any complaint filed before that date.
(p)Nothing in this part is intended to affect existing law regarding class action requirements.
SEC. 5.Section 425.50 of the Code of Civil Procedure is amended to read:425.50.(a)An allegation of a construction-related accessibility claim in a complaint, as defined in subdivision (a) of Section 55.52 of the Civil Code, shall state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim, including all of the following:
(1)A plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred, with sufficient information about the location of the alleged barrier to enable a reasonable person to identify the access barrier.
(2)The way in which the barrier denied the individual full and equal use or access, or in which it deterred the individual, on each particular occasion.
(3)The date or dates of each particular occasion on which the claimant encountered the specific access barrier, or on which he or she was deterred.
(4)(A)Except in complaints that allege physical injury or damage to property, a complaint filed by or on behalf of a high-frequency litigant shall also state all of the following:
(i)Whether the complaint is filed by, or on behalf of, a high-frequency litigant.
(ii)In the case of a high-frequency litigant who is a plaintiff, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint.
(iii)In the case of a high-frequency litigant who is a plaintiff, the reason the individual was in the geographic area of the defendants business.
(iv)In the case of a high-frequency litigant who is a plaintiff, the reason why the individual desired to access the defendants business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose.
(B)As used in this section high-frequency litigant has the same meaning as set forth in subdivision (b) of Section 425.55.
(b)(1)A complaint alleging a construction-related accessibility claim, as those terms are defined in subdivision (a) of Section 55.3 of the Civil Code, shall be verified by the plaintiff. A complaint filed without verification shall be subject to a motion to strike.
(2)A complaint alleging a construction-related accessibility claim filed by, or on behalf of, a high-frequency litigant shall state in the caption ACTION SUBJECT TO THE SUPPLEMENTAL FEE IN GOVERNMENT CODE SECTION 70616.5.
(c)A complaint alleging a construction-related accessibility claim shall be signed by at least one attorney of record in the attorneys individual name, or, if the party is not represented by an attorney, shall be signed by the party. By signing the complaint, the attorney or unrepresented party is certifying that, to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
(1)It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(2)The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
(3)The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4)The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(d)A court may, after notice and a reasonable opportunity to respond, determine whether subdivision (c) has been violated and, if so, impose sanctions as provided in Section 128.7 for violations of subdivision (b) of Section 128.7.
(e)Nothing in this section shall limit the right of a plaintiff to amend a complaint under Section 472, or with leave of the court under Section 473. However, an amended pleading alleging a construction-related accessibility claim shall be pled as required by subdivision (a).
(f)The determination whether an attorney is a high-frequency litigant shall be made solely on the basis of the verified complaint and any other publicly available documents. Notwithstanding any other law, no party to the proceeding may conduct discovery with respect to whether an attorney is a high-frequency litigant.
(g)This section shall become operative on January 1, 2013.
SEC. 6.Section 425.55 is added to the Code of Civil Procedure, to read:425.55.(a)The Legislature finds and declares all of the following:
(1)Protection of the civil rights of persons with disabilities is of the utmost importance to this state, and private enforcement is the essential means of achieving that goal, as the law has been designed.
(2)According to information from the California Commission on Disability Access, more than one-half, or 54 percent, of all construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms. Forty-six percent of all complaints were filed by a total of 14 parties. Therefore, a very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year. Moreover, these lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the accessibility violation. This practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations as they are entitled to have full and equal access under the states Unruh Civil Rights Act (Section 51 of the Civil Code) and the federal Americans with Disability Act of 1990 (Public Law 101-336).
(3)Therefore, given these special and unique circumstances, the provisions of this section are warranted for this limited group of plaintiffs.
(b)For the purposes of this article, high-frequency litigant means a person, except as specified in paragraph (3), who utilizes court resources in actions arising from alleged construction-related access violations at such a high level that it is appropriate that additional safeguards apply so as to ensure that the claims are warranted. A high-frequency litigant means one or more of the following:
(1)A plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.
(2)An attorney who has represented as attorney of record 10 or more high-frequency litigant plaintiffs in actions that were resolved within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation, excluding all of the following actions:
(A)An action in which an early evaluation conference was held pursuant to Section 55.54 of the Civil Code.
(B)An action in which judgment was entered in favor of the plaintiff.
(C)An action in which the construction-related accessibility violations alleged in the complaint were remedied in whole or in part, or a favorable result was achieved, after the plaintiff filed a complaint or provided a demand letter, as defined in Section 55.3 of the Civil Code.
(3)This section does not apply to an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment to represent a client in asserting a construction-related accessibility claim, or the client in such a case.
SEC. 7.Section 68085.35 is added to the Government Code, immediately following Section 68085.3, to read:68085.35.(a)Fees collected under Section 70616.5 shall be deposited in a bank account established by the Administrative Office of the Courts for deposit of fees collected by the courts.
(b)For each one-thousand-dollar ($1,000) fee listed in subdivision (a), the Administrative Office of the Courts shall distribute specified amounts as follows:
(1)Five hundred dollars ($500) to the General Fund for use, upon appropriation by the Legislature, by the California Commission on Disability Access.
(2)The remainder of the fee to the Trial Court Trust Fund.
(c)If any of the fees listed in subdivision (a) are reduced or partially waived, the amount of the reduction or partial waiver shall be deducted from the amount to be distributed to each fund in the same proportion as the amount each distribution bears to the total amount of the fee.
(d)No revenue collected pursuant to Section 70616.5 shall be used to supplant existing program funding of the California Commission on Disability Access.
SEC. 8.Section 70616.5 is added to the Government Code, to read:70616.5.(a)In addition to the first paper filing fee required by Section 70611 or 70613, a single high-frequency litigant fee shall be paid to the clerk on behalf of a plaintiff who is a high-frequency litigant, as that term is defined in Section 425.55 of the Code of Civil Procedure, at the time of the filing of the first paper if the complaint alleges a construction-related accessibility claim, as those terms are defined in subdivision (a) of Section 55.3 of the Civil Code.
(b)The fee established by this section shall be one thousand dollars ($1,000). The fee shall be transmitted as provided in Section 68085.35.
(c)Failure to pay the fees required by this section shall have the same effect as the failure to pay a filing fee, and shall be subject to the same enforcement and penalties.
SEC. 9.The Legislature finds and declares that Section 3 of this act limits the publics right of access to public documents within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest and the need for protecting that interest:
(a)The interest protected by this limitation is the privacy rights of litigants.
(b)The need for protecting those interests is to preclude the chilling effect on litigation if public disclosure were required.
SEC. 10.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SEC. 11.This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to ensure that the courts are not overburdened and are able to provide access to the judicial system for all persons seeking redress of their construction-related accessibility claims, it is necessary that these reasonable requirements placed on high-frequency litigants take effect immediately.
(a)Notwithstanding any law, the owner of property to which the general public is invited, as set forth in Section 54.1, shall indemnify a microbusiness tenant of that property for any liability under this part arising from any construction-related accessibility claims, as defined in paragraph (2) of subdivision (a) of Section 55.3, if the owner of the property had knowledge or notice that either of the following applied:
(1)The construction-related barrier existed prior to the initiation, renewal, or extension of the lease which is the basis of the microbusiness tenants liability.
(2)The construction-related barrier was created by parties other than the microbusiness tenant after the initiation, renewal, or extension of the lease which is the basis of the microbusiness tenants liability.
(b)The duty of the owner to indemnify a microbusiness tenant pursuant to subdivision (a) may be modified through a written agreement that may be included as a separate rider to the lease agreement, setting forth the terms under which the microbusiness tenant is accepting some or all of the potential liability for construction-related claims, including, but not limited to, a grant of the authority for the microbusiness tenant to modify the structure in order to comply with this part, and a process for determining the owners share of the costs of those modifications.
(c)For the purposes of this section, microbusiness has the same meaning as set forth in Section 14837 of the Government Code.
(d)This section shall apply only to construction-related liability arising from leases entered into, amended, or extended, on and after January 1, 2016.
SEC. 2.SECTION 1.Section 55.3 of the Civil Code is amended to read:55.3.(a)For purposes of this section, the following apply:
(1)Complaint means a civil complaint that is filed or is to be filed with a court and is sent to or served upon a defendant on the basis of one or more construction-related accessibility claims, as defined in this section.
(2)Construction-related accessibility claim means any claim of a violation of any construction-related accessibility standard, as defined by paragraph (6) of subdivision (a) of Section 55.52, with respect to a place of public accommodation. Construction-related accessibility claim does not include a claim of interference with housing within the meaning of paragraph (2) of subdivision (b) of Section 54.1, or any claim of interference caused by something other than the construction-related accessibility condition of the property, including, but not limited to, the conduct of any person.
(3)Demand for money means a prelitigation written document or oral statement that is provided or issued to a building owner or tenant, or the owners or tenants agent or employee, that does all of the following:
(A)Alleges that the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2).
(B)Contains or makes a request or demand for money or an offer or agreement to accept money.
(C)Is provided or issued whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(4)Demand letter means a prelitigation written document that is provided to a building owner or tenant, or the owners or tenants agent or employee, that alleges the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2), and is provided whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(b)An attorney shall provide the following items with each demand letter or complaint sent to or served upon a defendant or potential defendant alleging a construction-related accessibility claim:
(1)A written advisory on the form described in subparagraph (B), or, until that form is available, on a separate page or pages that are clearly distinguishable from the demand letter or complaint. The advisory shall not be required in subsequent communications following the initial demand letter or initial complaint unless a new construction-related accessibility claim is asserted in the subsequent demand letter or amended complaint.
(A)The advisory shall state as follows:
STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY INFORMATION FOR BUILDING OWNERS AND TENANTS
This information is available in English, Spanish, Chinese, Vietnamese, and Korean through the Judicial Council of California. Persons with visual impairments can get assistance in viewing this form through the Judicial Council Internet Web site at www.courts.ca.gov.
California law requires that you receive this information because the demand letter or court complaint you received with this document claims that your building or property does not comply with one or more existing construction-related accessibility laws or regulations protecting the civil rights of persons with disabilities to access public places.
YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability access laws is a serious and significant responsibility that applies to all California building owners and tenants with buildings open for business to the public. You may obtain information about your legal obligations and how to comply with disability access laws through the Division of the State Architect at www.dgs.ca.gov. Information is also available from the California Commission on Disability Access at www.ccda.ca.gov/guide.htm.
YOU HAVE IMPORTANT LEGAL RIGHTS. The allegations made in the accompanying demand letter or court complaint do not mean that you are required to pay any money unless and until a court finds you liable. Moreover, RECEIPT OF A DEMAND LETTER OR COURT COMPLAINT AND THIS ADVISORY DOES NOT NECESSARILY MEAN YOU WILL BE FOUND LIABLE FOR ANYTHING. You will have the right if you are later sued to fully present your explanation why you believe you have not in fact violated disability access laws or have corrected the violation or violations giving rise to the claim.
You have the right to seek assistance or advice about this demand letter or court complaint from any person of your choice. If you have insurance, you may also wish to contact your insurance provider. Your best interest may be served by seeking legal advice or representation from an attorney, but you may also represent yourself and file the necessary court papers to protect your interests if you are served with a court complaint. If you have hired an attorney to represent you, you should immediately notify your attorney.
If a court complaint has been served on you, you will get a separate advisory notice with the complaint advising you of special options and procedures available to you under certain conditions.
ADDITIONAL THINGS YOU SHOULD KNOW:
ATTORNEY MISCONDUCT. Except for limited circumstances, state law generally requires that a prelitigation demand letter from an attorney MAY NOT MAKE A REQUEST OR DEMAND FOR MONEY OR AN OFFER OR AGREEMENT TO ACCEPT MONEY. Moreover, a demand letter from an attorney MUST INCLUDE THE ATTORNEYS STATE BAR LICENSE NUMBER.
If you believe the attorney who provided you with this notice and prelitigation demand letter is not complying with state law, you may send a copy of the demand letter you received from the attorney to the State Bar of California by facsimile transmission to 1-415-538-2171, or by mail to the State Bar of California, 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
REDUCING YOUR DAMAGES. If you are a small business owner and correct all of the construction-related violations that are the basis of the complaint against you within 30 days of being served with the complaint, you may qualify for reduced damages if the matter results in a court judgment. If you believe you qualify for reduced damages, you damages. You may wish to consult an attorney to obtain legal advice, or advice. You may also wish to contact the California Commission on Disability Access for additional information about the rights and obligations of business owners.
COMMERCIAL TENANT. If you are a commercial tenant, you may not be responsible for ensuring that some or all portions of the premises you lease for your business, including common areas such as parking lots, are accessible to the public because those areas may be the responsibility of your landlord. You may want to refer to your lease agreement and consult with an attorney or contact your landlord, to determine if your landlord is responsible under the terms of your lease for maintaining and improving some or all of the areas you lease to operate your business. lease.
(B)On or before July 1, 2016, the Judicial Council shall update the advisory form that may be used by an attorney to comply with the requirements of subparagraph (A). The advisory form shall be in substantially the same format and include all of the text set forth in subparagraph (A). The advisory form shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the advisory form is available in additional languages, and the Judicial Council Internet Web site address where the different versions of the advisory form are located. The advisory form shall include Internet Web site information for the Division of the State Architect and the California Commission on Disability Access.
(2)An A verified answer form developed by the Judicial Council, which allows a defendant to respond to the complaint in the event a complaint is filed.
(A)The answer form shall be written in plain language and allow the defendant to state any relevant information affecting the defendants liability or damages including, but not limited to, the following:
(i)Specific denials of the allegations in the complaint, including whether the plaintiff has demonstrated that he or she was denied full and equal access to the place of public accommodation on a particular occasion pursuant to Section 55.56.
(ii)Potential affirmative defenses available to the defendant, including:
(I)An assertion that the defendants landlord is responsible for ensuring that some or all of the property leased by the defendant, including the areas at issue in the complaint, are accessible to the public. The defendant shall provide facts supporting that assertion, and the name and contact information of the defendants landlord.
(II)Any other affirmative defense the defendant wishes to assert.
(iii)A request to meet in person at the subject premises, if the defendant qualifies for an early evaluation conference pursuant to Section 55.54.
(iv)Any other information that the defendant believes is relevant to his or her potential liability or damages, including that the defendant qualifies for reduced damages pursuant to paragraph (1) or (2) of subdivision (f) of Section 55.56, and, if so, any facts supporting that assertion.
(B)The answer form shall provide instructions to a defendant who wishes to file the form as an answer to the complaint. The form shall also notify the defendant that he or she may use the completed form as an informal response to a demand letter or for settlement discussion purposes.
(C)On or before July 1, 2016, the Judicial Council shall adopt the answer form that may be used by an attorney to comply with the requirements of this paragraph, and shall post the answer form on the Judicial Council Internet web Web site.
(c)Subdivision (b) applies only to a demand letter or complaint made by an attorney. This section does not affect the right to file a civil complaint under any other law or regulation protecting the physical access rights of persons with disabilities. Additionally, this section does not require a party to provide or send a demand letter to another party before proceeding against that party with a civil complaint.
(d)This section does not apply to an action brought by the Attorney General or any district attorney, city attorney, or county counsel.
SEC. 2.Section 55.32 of the Civil Code, as added by Section 5 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Contemporaneously with providing the demand letter, send a copy of the demand letter to the State Bar of California by facsimile transmission at 1-415-538-2171, or by mail to 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
(3)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send do both of the following:
(1)Send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(2)Notify the California Commission on Disability Access within five business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of the following information in a standard format specified by the commission:
(A)The date of the judgment, settlement, or dismissal.
(B)Whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3.
(C)If the construction-related accessibility violations alleged in the complaint were not remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3, whether or not another favorable result was achieved after the plaintiff filed the complaint or provided the demand letter.
(D)Whether or not the defendant submitted an application for an early evaluation conference and stay pursuant to Section 55.54, whether the defendant requested a site inspection, the date of any early evaluation conference, and the date of any site inspection.
(c)A violation of paragraph (2) or (3) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney where a copy of the complaint or complaint, demand letter letter, or notification of a case outcome is not sent to the California Commission on Disability Access within five business days, or a copy of the demand letter is not sent to the State Bar within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the complaint or complaint, demand letter letter, or notification of a case outcome to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (3) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the State Bar of California or the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter or complaint sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from either the sender or recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Commencing July 31, 2013, and annually each July 31 thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Committees on Judiciary, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints it receives as provided in Section 8299.08 of the Government Code.
(h)Paragraphs (2) and (3) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(i)This section shall become operative on January 1, 2013.
(j)This section shall remain in effect only until January 1, 2016, 2019, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2016, deletes or extends that date. repealed.
SEC. 3.Section 55.32 of the Civil Code, as added by Section 6 of Chapter 383 of the Statutes of 2012, is amended to read:55.32.(a)An attorney who provides a demand letter, as defined in subdivision (a) of Section 55.3, shall do all of the following:
(1)Include the attorneys State Bar license number in the demand letter.
(2)Within five business days of providing the demand letter, send a copy of the demand letter to the California Commission on Disability Access.
(b)An attorney who sends or serves a complaint, as defined in subdivision (a) of Section 55.3, shall send do both of the following:
(1)Send a copy of the complaint to the California Commission on Disability Access within five business days of sending or serving the complaint.
(2)Notify the California Commission on Disability Access within five business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of the following information in a standard format specified by the commission:
(A)The date of the judgment, settlement, or dismissal.
(B)Whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3.
(C)If the construction-related accessibility violations alleged in the complaint were not remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter, as defined by Section 55.3, whether or not another favorable result was achieved after the plaintiff filed the complaint or provided the demand letter.
(D)Whether or not the defendant submitted an application for an early evaluation conference and stay pursuant to Section 55.54, whether the defendant requested a site inspection, the date of any early evaluation conference, and the date of any site inspection.
(c)A violation of paragraph (2) of subdivision (a) or subdivision (b) shall constitute cause for the imposition of discipline of an attorney if a copy of the demand letter or complaint letter, complaint, or notification of a case outcome is not sent to the California Commission on Disability Access within five business days. In the event the State Bar receives information indicating that an attorney has failed to send a copy of the demand letter or complaint letter, complaint, or notification of a case outcome to the California Commission on Disability Access within five business days, the State Bar shall investigate to determine whether paragraph (2) of subdivision (a) or subdivision (b) has been violated.
(d)Notwithstanding subdivisions (a) and (b), an attorney is not required to send to the California Commission on Disability Access a copy of any subsequent demand letter or amended complaint in the same dispute following the initial demand letter or complaint, unless that subsequent demand letter or amended complaint alleges a new construction-related accessibility claim.
(e)A demand letter sent to the California Commission on Disability Access shall be for the informational purposes of Section 8299.08 of the Government Code. A demand letter received by the State Bar from the recipient of the demand letter shall be reviewed by the State Bar to determine whether subdivision (b) or (c) of Section 55.31 has been violated.
(f)(1)Notwithstanding Section 10231.5 of the Government Code, on or before July 31, 2016, 2019, and annually thereafter, the State Bar shall report to the Legislature and the Chairs of the Senate and Assembly Judiciary Committees, both of the following with respect to demand letters received by the State Bar:
(A)The number of investigations opened to date on a suspected violation of subdivision (b) or (c) of Section 55.31.
(B)Whether any disciplinary action resulted from the investigation, and the results of that disciplinary action.
(2)A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
(g)The California Commission on Disability Access shall review and report on the demand letters and complaints it receives as provided in Section 8299.08 of the Government Code.
(h)The expiration of any ground for discipline of an attorney shall not affect the imposition of discipline for any act prior to the expiration. An act or omission that constituted cause for imposition of discipline of an attorney when committed or omitted prior to January 1, 2016, 2019, shall continue to constitute cause for the imposition of discipline of that attorney on and after January 1, 2016. 2019.
(i)Paragraph (2) of subdivision (a) and subdivision (b) shall not apply to a demand letter or complaint sent or filed by an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment in asserting a construction-related accessibility claim. The Legislature finds and declares that qualified legal services projects and support centers are extensively regulated by the State Bar of California, and that there is no evidence of any abusive use of demand letters or complaints by these organizations. The Legislature further finds that, in light of the evidence of the extraordinarily small number of construction-related accessibility cases brought by regulated legal services programs, and given the resources of those programs, exempting regulated legal services programs from the requirements of this section to report to the California Commission on Disability Access will not affect the purpose of the reporting to, and tabulation by, the commission of all other construction-related accessibility claims.
(j)This section shall become operative on January 1, 2016. 2019.
SEC. 3.SEC. 4.Section 55.54 of the Civil Code is amended to read:55.54.(a)(1)An attorney who causes a summons and complaint to be served in an action that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the same time, cause to be served a copy of the application form specified in subdivision (c) and a copy of the following notice, including, until January 1, 2013, the bracketed text, to the defendant on separate papers that shall be served with the summons and complaint:
ADVISORY NOTICE TO DEFENDANT
YOU MAY BE ENTITLED TO ASK FOR A COURT STAY (AN ORDER TEMPORARILY STOPPING ANY LAWSUIT) AND EARLY EVALUATION CONFERENCE IN THIS LAWSUIT AND MAY BE ASSESSED REDUCED STATUTORY DAMAGES IF YOU MEET CERTAIN CONDITIONS.
If the construction-related accessibility claim pertains to a site that has a Certified Access Specialist (CASp) inspection report for that site, or to a site where new construction or improvement was approved after January 1, 2008, by the local building permit and inspection process, you may make an immediate request for a court stay and early evaluation conference in the construction-related accessibility claim by filing the attached application form with the court. You may be entitled to the court stay and early evaluation conference regarding the accessibility claim only if ALL of the statements in the application form applicable to you are true.
FURTHER, if you are a defendant described above (with a CASp inspection report or with new construction after January 1, 2008), and, to the best of your knowledge, there have been no modifications or alterations completed or commenced since the CASp report or building department approval of the new construction or improvement that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, your liability for minimum statutory damages may be reduced to $1,000 for each offense, unless the violation was intentional, and if all construction-related accessibility violations giving rise to the claim are corrected within 60 days of being served with this complaint.
ALSO, if your business has been served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55 of the Civil Code, you may also be entitled to a court stay, stay and an early evaluation conference, and a site visit. conference. If you choose to request a stay and early evaluation conference, you may also request to meet in person with the plaintiff and counsel for both parties, as well as experts if the parties so elect, at the subject premises no later than 30 days after issuance of the court order to jointly inspect the portions of the subject premises and review any conditions that are claimed to constitute a violation of a construction-related accessibility standard.
IN ADDITION, if your business is a small business that, over the previous three years, or the existence of the business if less than three years, employs 25 or fewer employees on average over that time period and meets specified gross receipts criteria, you may also be entitled to the court stay and early evaluation conference and your minimum statutory damages for each claim may be reduced to $2,000 for each offense, unless the violation was intentional, and if all the alleged construction-related accessibility violations are corrected within 30 days of being served with the complaint.
If you plan to correct the violations giving rise to the claim, you should take pictures and measurements or similar action to document the condition of the physical barrier asserted to be the basis for a violation before undertaking any corrective action in case a court needs to see the condition of a barrier before it was corrected.
The court will schedule the conference to be held within 70 days after you file the attached application form.
[If you are not a defendant with a CASp inspection report, until a form is adopted by the Judicial Council, you may use the attached form if you modify the form and supplement it with your declaration stating any one of the following:
(1)Until January 1, 2018, that the sites new construction or improvement on or after January 1, 2008, and before January 1, 2016, was approved pursuant to the local building permit and inspection process; that, to the best of your knowledge, there have been no modifications or alterations completed or commenced since the building department approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(2)That the sites new construction or improvement passed inspection by a local building department inspector who is a certified access specialist; that, to the best of your knowledge, there have been no modifications or alterations completed or commenced since that inspection approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(3)That your business is a small business with 25 or fewer employees and meets the gross receipts criteria set out in Section 55.56 of the Civil Code, and that all violations giving rise to the claim have been corrected, or will be corrected within 30 days of being served with the complaint.]
The court will also issue an immediate stay of the proceedings unless the plaintiff has obtained a temporary restraining order in the construction-related accessibility claim. You may obtain a copy of the application form, filing instructions, and additional information about the stay and early evaluation conference through the Judicial Council Internet Web site at www.courts.ca.gov/selfhelp-start.htm.
You may file the application after you are served with a summons and complaint, but no later than your first court pleading or appearance in this case, which is due within 30 days after you receive the summons and complaint. If you do not file the application, you will still need to file your reply to the lawsuit within 30 days after you receive the summons and complaint to contest it. You may obtain more information about how to represent yourself and how to file a reply without hiring an attorney at www.courts.ca.gov/selfhelp-start.htm.
You may file the application without the assistance of an attorney, but it may be in your best interest to immediately seek the assistance of an attorney experienced in disability access laws when you receive a summons and complaint. You may make an offer to settle the case, and it may be in your interest to put that offer in writing so that it may be considered under Section 55.55 of the Civil Code.
(2)An attorney who files a Notice of Substitution of Counsel to appear as counsel for a plaintiff who, acting in propria persona, had previously filed a complaint in an action that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the same time, cause to be served a copy of the application form specified in subdivision (c) and a copy of the notice specified in paragraph (1) upon the defendant on separate pages that shall be attached to the Notice of Substitution of Counsel.
(b)(1)Notwithstanding any other law, upon being served with a summons and complaint asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, a qualified defendant, or other defendant as defined in paragraph (2), may file a request for a court stay and early evaluation conference in the proceedings of that claim prior to or simultaneous with that defendants responsive pleading or other initial appearance in the action that includes the claim. If that defendant filed a timely request for stay and early evaluation conference before a responsive pleading was due, the period for filing a responsive pleading shall be tolled until the stay is lifted. Any responsive pleading filed simultaneously with a request for stay and early evaluation conference may be amended without prejudice, and the period for filing that amendment shall be tolled until the stay is lifted.
(2)This subdivision shall also apply to a defendant if any of the following apply:
(A)Until January 1, 2018, the sites new construction or improvement on or after January 1, 2008, and before January 1, 2016, was approved pursuant to the local building permit and inspection process, and the defendant declares with the application that, to the best of the defendants knowledge, there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, and that all violations have been corrected, or will be corrected within 60 days of being served with the complaint.
(B)The sites new construction or improvement was approved by a local public building department inspector who is a certified access specialist, and the defendant declares with the application that, to the best of the defendants knowledge, there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, and that all violations have been corrected, or will be corrected within 60 days of being served with the complaint.
(C)The defendant is a small business described in subdivision (f) of Section 55.56, and the defendant declares with the application that all violations have been corrected, or will be corrected within 30 days of being served with the complaint.
(D)The defendant is a business that has been served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55.
(3)Notwithstanding any other law, if the plaintiff had acted in propria persona in filing a complaint that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, a qualified defendant, or a defendant described by paragraph (2), who is served with a Notice of Substitution of Counsel shall have 30 days to file an application for a stay and an early evaluation conference. The application may be filed prior to or after the defendants filing of a responsive pleading or other initial appearance in the action that includes the claim, except that an application may not be filed in a claim in which an early evaluation conference or settlement conference has already been held on the claim.
(c)(1)An application for an early evaluation conference and stay by a qualified defendant shall include a signed declaration that states both of the following:
(A)The site identified in the complaint has been CASp-inspected or meets applicable standards, or is CASp determination pending or has been inspected by a CASp, and if the site is CASp-inspected or meets applicable standards, there have been no modifications completed or commenced since the date of inspection that may impact compliance with construction-related accessibility standards to the best of the defendants knowledge.
(B)An inspection report pertaining to the site has been issued by a CASp. The inspection report shall be provided to the court and the plaintiff at least 15 days prior to the court date set for the early evaluation conference.
(2)An application for an early evaluation conference and stay by a defendant described by subparagraph (A) of paragraph (2) of subdivision (b), which may be filed until January 1, 2018, shall include a signed declaration that states all of the following:
(A)The sites new construction or improvement was approved pursuant to the local building permit and inspection process on or after January 1, 2008, and before January 1, 2016.
(B)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(C)All construction-related violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served upon the defendant.
(3)An application for an early evaluation conference and stay by a defendant described in subparagraph (B) of paragraph (2) of subdivision (b) shall include a signed declaration that states all of the following:
(A)The sites new construction or improvement was approved by a local building department inspector who is a certified access specialist.
(B)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(C)All construction related violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served upon the defendant.
(4)An application for an early evaluation conference and stay by a defendant described by subparagraph (C) of paragraph (2) of subdivision (b) shall include the materials listed in paragraphs (5) and (6) of this subdivision, and shall include a signed declaration that states both of the following:
(A)The defendant is a small business that employs 25 or fewer employees and meets the gross receipts eligibility criteria provided in paragraph (2) of subdivision (f) of Section 55.56.
(B)All construction-related violations giving rise to the claim have been corrected, or will be corrected within 30 days of the complaint being served upon the defendant.
(5)An application for an early evaluation conference and stay by a small business defendant under paragraph (4) shall include evidence showing correction of all violations within 30 days of the service of the complaint and served upon the plaintiff with the reply unless the application is filed prior to completion of the corrections. In that event, the evidence shall be provided to the court and served upon the plaintiff within 10 days of the court order as provided in paragraph (4) of subdivision (d). This paragraph shall not be construed to extend the permissible time under subdivision (f) of Section 55.56 to make the corrections.
(6)An application for an early evaluation conference and stay by a small business defendant under paragraph (4) shall also include both of the following, which shall be confidential documents filed only with the court and not served upon or available to the plaintiff:
(A)Proof of the defendants number of employees, as shown by wage report forms filed with the Employment Development Department.
(B)Proof of the defendants average gross receipts for the previous three years, or for the existence of the business if less than three years, as shown by a federal or state tax document.
(7)An application for an early evaluation conference and stay by a defendant described by subparagraph (D) of paragraph (2) of subdivision (b) shall include a signed declaration that the defendant was served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55.
(8)The following provisional request and notice forms may be used and filed by a qualified defendant until forms are adopted by the Judicial Council for those purposes pursuant to subdivision (l):
PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE INSERTED(9)The provisional forms and any replacement Judicial Council forms shall include the defendants declaration of proof of service of the application, the notice of the courts order, and the courts order pursuant to subdivision (d).
(d)Upon the filing of an application for stay and early evaluation conference by a qualified defendant, or a defendant described by paragraph (2) of subdivision (b), the court shall immediately issue an order that does all of the following:
(1)Grants a 90-day stay of the proceedings with respect to the construction-related accessibility claim, unless the plaintiff has obtained temporary injunctive relief that is still in place for the construction-related accessibility claim.
(2)Schedules a mandatory early evaluation conference for a date as soon as possible from the date of the order, but in no event later than 70 days after issuance of the order, and in no event earlier than 50 days after the filing of the request.
(3)Directs the parties, and any other person whose authority is required to negotiate and enter into settlement, to appear in person at the time set for the conference. Appearance by counsel shall not satisfy the requirement that the parties or those with negotiation and settlement authority personally appear, provided, however, that the court may allow a party who is unable to attend in person due to his or her disability to participate in the hearing by telephone or other alternative means or through a representative authorized to settle the case.
(4)(A)Directs the qualified defendant to file with the court and serve on the plaintiff a copy of any relevant CASp inspection report at least 15 days before the date of the conference. The CASp inspection report is confidential and is available only as set forth in paragraph (5) of this subdivision and in paragraph (4) of subdivision (e).
(B)Directs a defendant described by subparagraph (A) or (B) of paragraph (2) of subdivision (b) who has filed a declaration stating that the violation or violations have been corrected, or will be corrected within 60 days of service of the complaint to file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days after the completion of the corrections.
(C)Directs a defendant described by subparagraph (C) of paragraph (2) of subdivision (b) who has filed a declaration stating that the violation or violations have been corrected, or will be corrected within 30 days of service of the complaint to file with the court and serve on the plaintiff within 10 days after issuance of the court order evidence of correction of the violation or violations, if that evidence showing correction was not filed previously with the application and served on the plaintiff.
(5)Directs the parties that the CASp inspection report may be disclosed only to the court, the parties to the action, the parties attorneys, those individuals employed or retained by the attorneys to assist in the litigation, and insurance representatives or others involved in the evaluation and settlement of the case.
(6)If the defendant so requests, directs the parties that no later than 30 days after issuance of the court order the parties and their counsel, accompanied by their experts if the parties so elect, shall meet in person at the subject premises. They shall jointly inspect the portions of the subject premises, and shall review any programmatic or policy issues, that are claimed to constitute a violation of a construction-related accessibility standard. The court may allow a plaintiff who is unable to meet in person at the subject premises to be excused from participating in a site visit or to participate by telephone or other alternative means for good cause. A plaintiff or plaintiffs counsel is not required, but may agree, to attend more than one in-person site meeting. A site inspection pursuant to this paragraph shall not affect the right of the parties to conduct otherwise appropriate discovery.
(7)Directs the plaintiff to file with the court and serve on the defendant at least 15 days before the date of the conference a statement that includes, to the extent reasonably known, for use solely for the purpose of the early evaluation conference, all of the following:
(A)An itemized list of specific conditions on the subject premises that are the basis of the claimed violations of construction-related accessibility standards in the plaintiffs complaint.
(B)The amount of damages claimed.
(C)The amount of attorneys fees and costs incurred to date, if any, that are being claimed.
(D)Any demand for settlement of the case in its entirety.
(e)(1)A party failing to comply with any court order may be subject to court sanction at the courts discretion.
(2)(A)The court shall lift the stay when the defendant has failed to file and serve the CASp inspection report prior to the early evaluation conference and has failed also to produce the report at the time of the early evaluation conference, unless the defendant shows good cause for that failure.
(B)The court shall lift the stay when a defendant described by paragraph (2) of subdivision (b) has failed to file and serve the evidence showing correction of the violation or violations as required by law.
(3)The court may lift the stay at the conclusion of the early evaluation conference upon a showing of good cause by the plaintiff. Good cause may include the defendants failure to make reasonably timely progress toward completion of corrections noted by a CASp.
(4)The CASp inspection report filed and served pursuant to subdivision (d) shall remain confidential throughout the stay and shall continue to be confidential until the conclusion of the claim, whether by dismissal, settlement, or final judgment, unless there is a showing of good cause by any party. Good cause may include the defendants failure to make reasonably timely progress toward completion of corrections noted by a CASp. The confidentiality of the inspection report shall terminate upon the conclusion of the claim, unless the owner of the report obtains a court order pursuant to the California Rules of Court to seal the record.
(f)All discussions at the early evaluation conference shall be subject to Section 1152 of the Evidence Code. It is the intent of the Legislature that the purpose of the evaluation conference shall include, but not be limited to, evaluation of all of the following, as applicable:
(1)Whether the defendant is entitled to the 90-day stay for some or all of the identified issues in the case, as a qualified defendant.
(2)The current condition of the site and the status of any plan of corrections, including whether the qualified defendant has corrected or is willing to correct the alleged violations, and the timeline for doing so.
(3)Whether subdivision (f) of Section 55.56 may be applicable to the case, and whether all violations giving rise to the claim have been corrected within the specified time periods.
(4)Whether the case, including any claim for damages or injunctive relief, can be settled in whole or in part.
(5)Whether the parties should share other information that may facilitate early evaluation and resolution of the dispute.
(g)Nothing in this section precludes any party from making an offer to compromise pursuant to Section 998 of the Code of Civil Procedure.
(h)For a claim involving a qualified defendant, as provided in paragraph (1) of subdivision (b), the court may schedule additional conferences and may extend the 90-day stay for good cause shown, but not to exceed one additional 90-day extension.
(i)Early evaluation conferences shall be conducted by a superior court judge or commissioner, or a court early evaluation conference officer. A commissioner shall not be qualified to conduct early evaluation conferences pursuant to this subdivision unless he or she has received training regarding disability access requirements imposed by the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), state laws that govern access to public facilities, and federal and state regulations adopted pursuant to those laws. For purposes of this subdivision, a court early evaluation conference officer means an attorney employed by the court who has received training regarding disability access requirements imposed by the federal Americans with Disabilities Act of 1990, state laws that govern access to public facilities, and federal and state regulations adopted pursuant to those laws. Attorneys serving in this capacity may also be utilized by the court for other purposes not related to these proceedings.
(j)Nothing in this part shall be deemed to make any inspection report, opinion, statement, or other finding or conclusion of a CASp binding on the court, or to abrogate in any manner the ultimate authority of the court to make all appropriate findings of fact and law. The CASp inspection report and any opinion, statement, finding, or conclusion therein shall be given the weight the trier of fact finds that it deserves.
(k)Nothing in this part shall be construed to invalidate or limit any California construction-related accessibility standard that provides greater or equal protection for the rights of individuals with disabilities than is afforded by the federal Americans with Disabilities Act (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.) and the federal regulations adopted pursuant to that act.
(l)(1)The Judicial Council shall, by January 1, 2013, prepare and post on its Internet Web site instructions and a form for use by a qualified defendant, or other defendant described by paragraph (2) of subdivision (b), to file an application for stay and early evaluation conference as provided in subdivisions (b) and (c), a form for the courts notice of stay and early evaluation conference, and any other forms appropriate to implement the provisions relating to early evaluation conferences. Until those forms are adopted, the Judicial Council shall post on its Internet Web site the provisional forms set forth in subdivision (c).
(2)Until the adoption of the forms as provided in paragraph (1), the provisional application form may be used by a defendant described by paragraph (2) of subdivision (b).
(3)In lieu of the provisions specified in number 3 of page 1 of the application form set forth in paragraph (7) of subdivision (c), the application shall include one of the following declarations of the defendant as to the basis for the application, as follows:
(A)That all of the following apply to a defendant described by subparagraph (A) of paragraph (2) of subdivision (b):
(i)The sites new construction or improvement was approved pursuant to the local building permit and inspection process on or after January 1, 2008, and before January 1, 2016.
(ii)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(iii)All the violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(B)That all of the following apply to a defendant described by subparagraph (B) of paragraph (2) of subdivision (b):
(i)The sites new construction or improvement was approved by a local public building department inspector who is a certified access specialist.
(ii)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(iii)All the violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(C)That both of the following apply to a defendant described by subparagraph (C) of paragraph (2) of subdivision (b):
(i)The defendant is a small business described in paragraph (2) of subdivision (f) of Section 55.56.
(ii)The violation or violations giving rise to the claim have been corrected, or will be corrected within 30 days of the complaint being served.
(4)In lieu of the provision specified in number 4(c) of page 1 of the application form set forth in paragraph (7) of subdivision (c), the application shall include a request that the court order the defendant to do either of the following:
(A)For a defendant who has filed a declaration stating that all violations have been corrected, or will be corrected within 60 days of service of the complaint, file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days of the completion of the corrections.
(B)For a defendant who is a small business that has filed a declaration stating that all the violations have been corrected, or will be corrected within 30 days of the service of the complaint, file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days after issuance of the court order, if that evidence showing correction was not filed previously with the application and served on the plaintiff.
(5)The Judicial Council shall also prepare and post on its Internet Web site instructions and cover pages to assist plaintiffs and defendants, respectively, to comply with their filing responsibilities under subdivision (d). The cover pages shall also provide for the partys declaration of proof of service of the pertinent document served under the court order.
(m)The stay provisions shall not apply to any construction-related accessibility claim in which the plaintiff has been granted temporary injunctive relief that remains in place.
(n)This section shall not apply to any action brought by the Attorney General, or by any district attorney, city attorney, or county counsel.
(o)The amendments to this section made by Senate Bill 1186 of the 201112 Regular Session of the Legislature shall apply only to claims filed on or after the operative date of that act. Nothing in this part is intended to affect any complaint filed before that date.
(p)Nothing in this part is intended to affect existing law regarding class action requirements.
SEC. 4.SEC. 5.Section 425.50 of the Code of Civil Procedure is amended to read:425.50.(a)An allegation of a construction-related accessibility claim in a complaint, as defined in subdivision (a) of Section 55.52 of the Civil Code, shall state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim, including all of the following:
(1)A plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred, with sufficient information about the location of the alleged barrier to enable a reasonable person to identify the access barrier.
(2)The way in which the barrier denied the individual full and equal use or access, or in which it deterred the individual, on each particular occasion.
(3)The date or dates of each particular occasion on which the claimant encountered the specific access barrier, or on which he or she was deterred.
(4)(A)Except in complaints that allege physical injury or damage to property, a complaint filed by or on behalf of a high-frequency litigant shall also state all of the following:
(i)That Whether the complaint is filed by, or on behalf of, a high-frequency litigant.
(ii)In the case of a high-frequency litigant who is a plaintiff, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint.
(iii)In the case of a high-frequency litigant who is a plaintiff, the reason the individual was in the geographic area of the defendants business.
(iv)In the case of a high-frequency litigant who is a plaintiff, the reason why the individual desired to access the defendants business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose.
(B)As used in this section high-frequency litigant has the same meaning as set forth in subdivision (b) of Section 425.55.
(b)(1)A complaint alleging a construction-related accessibility claim, as those terms are defined in subdivision (a) of Section 55.3 of the Civil Code, shall be verified by the plaintiff. A complaint filed without verification shall be subject to a motion to strike.
(2)A complaint alleging a construction-related accessibility claim filed by, or on behalf of, a high-frequency litigant shall state in the caption ACTION SUBJECT TO THE SUPPLEMENTAL FEE IN GOVERNMENT CODE SECTION 70616.5.
(c)A complaint alleging a construction-related accessibility claim shall be signed by at least one attorney of record in the attorneys individual name, or, if the party is not represented by an attorney, shall be signed by the party. By signing the complaint, the attorney or unrepresented party is certifying that, to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
(1)It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(2)The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
(3)The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4)The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(d)A court may, after notice and a reasonable opportunity to respond, determine whether subdivision (c) has been violated and, if so, impose sanctions as provided in Section 128.7 for violations of subdivision (b) of Section 128.7.
(e)Nothing in this section shall limit the right of a plaintiff to amend a complaint under Section 472, or with leave of the court under Section 473. However, an amended pleading alleging a construction-related accessibility claim shall be pled as required by subdivision (a).
(f)The determination whether an attorney is a high-frequency litigant shall be made solely on the basis of the verified complaint and any other publicly available documents. Notwithstanding any other law, no party to the proceeding may conduct discovery with respect to whether an attorney is a high-frequency litigant.
(f)
(g)This section shall become operative on January 1, 2013.
SEC. 5.SEC. 6.Section 425.55 is added to the Code of Civil Procedure, to read:425.55.(a)The Legislature finds and declares all of the following:
(1)Protection of the civil rights of persons with disabilities is of the utmost importance to this state, and private enforcement is the essential means of achieving that goal, as the law has been designed.
(2)According to information from the California Commission on Disability Access, more than one-half, or 54 percent, of all construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms. Forty-six percent of all complaints were filed by a total of 14 parties. Therefore, a very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year. Moreover, these lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the accessibility violation. This practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations as they are entitled to have full and equal access under the states Unruh Civil Rights Act (Section 51 of the Civil Code) and the federal Americans with Disability Act of 1990 (Public Law 101-336).
(3)Therefore, given these special and unique circumstances, the provisions of this section are warranted for this limited group of plaintiffs.
(b)For the purposes of this article, high-frequency litigant means a person person, except as specified in paragraph (3), who utilizes court resources in actions arising from alleged construction-related access violations at such a high level that it is appropriate that additional safeguards apply so as to ensure that the claims are warranted and appropriate. warranted. A high-frequency litigant means one or more of the following:
(1)A plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.
(2)An attorney who has represented as attorney of record 10 or more high-frequency litigant plaintiffs who were high-frequency litigants at the time when complaints alleging construction-related accessibility violations were filed on their behalf in actions that were resolved within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation. violation, excluding all of the following actions:
(A)An action in which an early evaluation conference was held pursuant to Section 55.54 of the Civil Code.
(B)An action in which judgment was entered in favor of the plaintiff.
(C)An action in which the construction-related accessibility violations alleged in the complaint were remedied in whole or in part, or a favorable result was achieved, after the plaintiff filed a complaint or provided a demand letter, as defined in Section 55.3 of the Civil Code.
(3)This section does not apply to an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment to represent a client in asserting a construction-related accessibility claim, or the client in such a case.
SEC. 6.SEC. 7.Section 68085.35 is added to the Government Code, immediately following Section 68085.3, to read:68085.35.(a)Fees collected under Section 70616.5 shall be deposited in a bank account established by the Administrative Office of the Courts for deposit of fees collected by the courts.
(b)For each one-thousand-dollar ($1,000) fee listed in subdivision (a), the Administrative Office of the Courts shall distribute specified amounts as follows:
(1)Five hundred dollars ($500) to the General Fund for use, upon appropriation by the Legislature, by the California Commission on Disability Access.
(2)The remainder of the fee to the Trial Court Trust Fund.
(c)If any of the fees listed in subdivision (a) are reduced or partially waived, the amount of the reduction or partial waiver shall be deducted from the amount to be distributed to each fund in the same proportion as the amount each distribution bears to the total amount of the fee.
(d)No revenue collected pursuant to Section 70616.5 shall be used to supplant existing program funding of the California Commission on Disability Access.
SEC. 7.SEC. 8.Section 70616.5 is added to the Government Code, to read:70616.5.(a)In addition to the first paper filing fee required by Section 70611 or 70613, a single high-frequency litigant fee shall be paid to the clerk on behalf of a plaintiff who is a high-frequency litigant, as that term is defined in Section 425.55 of the Code of Civil Procedure, at the time of the filing of the first paper if the complaint alleges a construction-related accessibility claim, as those terms are defined in subdivision (a) of Section 55.3 of the Civil Code.
(b)The fee established by this section shall be one thousand dollars ($1,000). The fee shall be transmitted as provided in Section 68085.35.
(c)Failure to pay the fees required by this section shall have the same effect as the failure to pay a filing fee, and shall be subject to the same enforcement and penalties.
SEC. 8.SEC. 9.The Legislature finds and declares that Section 3 of this act limits the publics right of access to public documents within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest and the need for protecting that interest:
(a)The interest protected by this limitation is the privacy rights of litigants.
(b)The need for protecting those interests is to preclude the chilling effect on litigation if public disclosure were required.
SEC. 9.SEC. 10.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SEC. 10.SEC. 11.This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to ensure that the courts are not overburdened and are able to provide access to the judicial system for all persons seeking redress of their construction-related accessibility claims, it is necessary that these reasonable requirements placed on high-frequency litigants take effect immediately.
(a)Notwithstanding any law, the owner of property to which the general public is invited, as set forth in Section 54.1, shall indemnify a microbusiness tenant of that property for any liability under this part arising from any construction-related accessibility claims, as defined in paragraph (2) of subdivision (a) of Section 55.3, if the owner of the property had knowledge or notice that either of the following applied:
(1)The construction-related barrier existed prior to the initiation, renewal, or extension of the lease which is the basis of the microbusiness tenants liability.
(2)The construction-related barrier was created by parties other than the microbusiness tenant after the initiation, renewal, or extension of the lease which is the basis of the microbusiness tenants liability.
(b)The duty of the owner to indemnify a microbusiness tenant pursuant to subdivision (a) may be modified through a written agreement that may be included as a separate rider to the lease agreement, setting forth the terms under which the microbusiness tenant is accepting some or all of the potential liability for construction-related claims, including, but not limited to, a grant of the authority for the microbusiness tenant to modify the structure in order to comply with this part, and a process for determining the owners share of the costs of those modifications.
(c)For the purposes of this section, microbusiness has the same meaning as set forth in Section 14837 of the Government Code.
(d)This section shall apply only to construction-related liability arising from leases entered into, amended, or extended, on and after January 1, 2016.
SEC. 2.Section 55.3 of the Civil Code is amended to read:55.3.(a)For purposes of this section, the following apply:
(1)Complaint means a civil complaint that is filed or is to be filed with a court and is sent to or served upon a defendant on the basis of one or more construction-related accessibility claims, as defined in this section.
(2)Construction-related accessibility claim means any claim of a violation of any construction-related accessibility standard, as defined by paragraph (6) of subdivision (a) of Section 55.52, with respect to a place of public accommodation. Construction-related accessibility claim does not include a claim of interference with housing within the meaning of paragraph (2) of subdivision (b) of Section 54.1, or any claim of interference caused by something other than the construction-related accessibility condition of the property, including, but not limited to, the conduct of any person.
(3)Demand for money means a prelitigation written document or oral statement that is provided or issued to a building owner or tenant, or the owners or tenants agent or employee, that does all of the following:
(A)Alleges that the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2).
(B)Contains or makes a request or demand for money or an offer or agreement to accept money.
(C)Is provided or issued whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(4)Demand letter means a prelitigation written document that is provided to a building owner or tenant, or the owners or tenants agent or employee, that alleges the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2), and is provided whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(b)An attorney shall provide the following items with each demand letter or complaint sent to or served upon a defendant or potential defendant alleging a construction-related accessibility claim:
(1)A written advisory on the form described in subparagraph (B), or, until that form is available, on a separate page or pages that are clearly distinguishable from the demand letter or complaint. The advisory shall not be required in subsequent communications following the initial demand letter or initial complaint unless a new construction-related accessibility claim is asserted in the subsequent demand letter or amended complaint.
(A)The advisory shall state as follows:
STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY INFORMATION FOR BUILDING OWNERS AND TENANTS
This information is available in English, Spanish, Chinese, Vietnamese, and Korean through the Judicial Council of California. Persons with visual impairments can get assistance in viewing this form through the Judicial Council Internet Web site at www.courts.ca.gov.
California law requires that you receive this information because the demand letter or court complaint you received with this document claims that your building or property does not comply with one or more existing construction-related accessibility laws or regulations protecting the civil rights of persons with disabilities to access public places.
YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability access laws is a serious and significant responsibility that applies to all California building owners and tenants with buildings open for business to the public. You may obtain information about your legal obligations and how to comply with disability access laws through the Division of the State Architect at www.dgs.ca.gov. Information is also available from the California Commission on Disability Access at www.ccda.ca.gov/guide.htm.
YOU HAVE IMPORTANT LEGAL RIGHTS. The allegations made in the accompanying demand letter or court complaint do not mean that you are required to pay any money unless and until a court finds you liable. Moreover, RECEIPT OF A DEMAND LETTER OR COURT COMPLAINT AND THIS ADVISORY DOES NOT NECESSARILY MEAN YOU WILL BE FOUND LIABLE FOR ANYTHING. You will have the right if you are later sued to fully present your explanation why you believe you have not in fact violated disability access laws or have corrected the violation or violations giving rise to the claim.
You have the right to seek assistance or advice about this demand letter or court complaint from any person of your choice. If you have insurance, you may also wish to contact your insurance provider. Your best interest may be served by seeking legal advice or representation from an attorney, but you may also represent yourself and file the necessary court papers to protect your interests if you are served with a court complaint. If you have hired an attorney to represent you, you should immediately notify your attorney.
If a court complaint has been served on you, you will get a separate advisory notice with the complaint advising you of special options and procedures available to you under certain conditions.
ADDITIONAL THINGS YOU SHOULD KNOW:
ATTORNEY MISCONDUCT. Except for limited circumstances, state law generally requires that a prelitigation demand letter from an attorney MAY NOT MAKE A REQUEST OR DEMAND FOR MONEY OR AN OFFER OR AGREEMENT TO ACCEPT MONEY. Moreover, a demand letter from an attorney MUST INCLUDE THE ATTORNEYS STATE BAR LICENSE NUMBER.
If you believe the attorney who provided you with this notice and prelitigation demand letter is not complying with state law, you may send a copy of the demand letter you received from the attorney to the State Bar of California by facsimile transmission to 1-415-538-2171, or by mail to the State Bar of California, 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
REDUCING YOUR DAMAGES. If you are a small business owner and correct all of the construction-related violations that are the basis of the complaint against you within 30 days of being served with the complaint, you may qualify for reduced damages if the matter results in a court judgment. If you believe you qualify for reduced damages, you may wish to consult an attorney to obtain legal advice, or contact the California Commission on Disability Access for additional information about the rights and obligations of business owners.
COMMERCIAL TENANT. If you are a commercial tenant, you may not be responsible for ensuring that some or all portions of the premises you lease for your business, including common areas such as parking lots, are accessible to the public because those areas may be the responsibility of your landlord. You may want to refer to your lease agreement and consult with an attorney or contact your landlord, to determine if your landlord is responsible under the terms of your lease for maintaining and improving some or all of the areas you lease to operate your business.
(B)On or before July 1, 2016, the Judicial Council shall update the advisory form that may be used by an attorney to comply with the requirements of subparagraph (A). The advisory form shall be in substantially the same format and include all of the text set forth in subparagraph (A). The advisory form shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the advisory form is available in additional languages, and the Judicial Council Internet Web site address where the different versions of the advisory form are located. The advisory form shall include Internet Web site information for the Division of the State Architect and the California Commission on Disability Access.
(2)An answer form developed by the Judicial Council, which allows a defendant to respond to the complaint in the event a complaint is filed.
(A)The answer form shall be written in plain language and allow the defendant to state any relevant information affecting the defendants liability or damages including, but not limited to, the following:
(i)Specific denials of the allegations in the complaint, including whether the plaintiff has demonstrated that he or she was denied full and equal access to the place of public accommodation on a particular occasion pursuant to Section 55.56.
(ii)Potential affirmative defenses available to the defendant, including:
(I)An assertion that the defendant qualifies for reduced damages pursuant to paragraph (1) or (2) of subdivision (f) of Section 55.56, and facts supporting that assertion.
(II)
(I)An assertion that the defendants landlord is responsible for ensuring that some or all of the property leased by the defendant, including the areas at issue in the complaint, are accessible to the public. The defendant shall provide facts supporting that assertion, and the name and contact information of the defendants landlord.
(III)
(II)Any other affirmative defense the defendant wishes to assert.
(iii)Whether the defendant made a written settlement offer that was rejected by the plaintiff, or met with the plaintiff in a good faith effort to negotiate a settlement of the complaint.
(iii)A request to meet in person at the subject premises, if the defendant qualifies for an early evaluation conference pursuant to Section 55.54.
(iv)Any other information that the defendant believes is relevant to his or her potential liability or damages. damages, including that the defendant qualifies for reduced damages pursuant to paragraph (1) or (2) of subdivision (f) of Section 55.56, and, if so, any facts supporting that assertion.
(B)The answer form shall provide instructions to a defendant who wishes to file the form as an answer to the complaint. The form shall also notify the defendant that he or she may use the completed form as an informal response to a demand letter or for settlement discussion purposes.
(C)On or before July 1, 2016, the Judicial Council shall adopt the answer form that may be used by an attorney to comply with the requirements of this paragraph, and shall post the answer form on the Judicial Council Internet web site.
(c)Subdivision (b) applies only to a demand letter or complaint made by an attorney. This section does not affect the right to file a civil complaint under any other law or regulation protecting the physical access rights of persons with disabilities. Additionally, this section does not require a party to provide or send a demand letter to another party before proceeding against that party with a civil complaint.
(d)This section does not apply to an action brought by the Attorney General or any district attorney, city attorney, or county counsel.
SEC. 3.Section 55.54 of the Civil Code is amended to read:55.54.(a)(1)An attorney who causes a summons and complaint to be served in an action that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the same time, cause to be served a copy of the application form specified in subdivision (c) and a copy of the following notice, including, until January 1, 2013, the bracketed text, to the defendant on separate papers that shall be served with the summons and complaint:
ADVISORY NOTICE TO DEFENDANT
YOU MAY BE ENTITLED TO ASK FOR A COURT STAY (AN ORDER TEMPORARILY STOPPING ANY LAWSUIT) AND EARLY EVALUATION CONFERENCE IN THIS LAWSUIT AND MAY BE ASSESSED REDUCED STATUTORY DAMAGES IF YOU MEET CERTAIN CONDITIONS.
If the construction-related accessibility claim pertains to a site that has a Certified Access Specialist (CASp) inspection report for that site, or to a site where new construction or improvement was approved after January 1, 2008, by the local building permit and inspection process, you may make an immediate request for a court stay and early evaluation conference in the construction-related accessibility claim by filing the attached application form with the court. You may be entitled to the court stay and early evaluation conference regarding the accessibility claim only if ALL of the statements in the application form applicable to you are true.
FURTHER, if you are a defendant described above (with a CASp inspection report or with new construction after January 1, 2008), and, to the best of your knowledge, there have been no modifications or alterations completed or commenced since the CASp report or building department approval of the new construction or improvement that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, your liability for minimum statutory damages may be reduced to $1,000 for each offense, unless the violation was intentional, and if all construction-related accessibility violations giving rise to the claim are corrected within 60 days of being served with this complaint.
ALSO,
ALSO, if your business has been served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55 of the Civil Code, you may also be entitled to a court stay, early evaluation conference, and a site visit. If you choose to request a stay and early evaluation conference, you may also request to meet in person with the plaintiff and counsel for both parties, as well as experts if the parties so elect, at the subject premises no later than 30 days after issuance of the court order to jointly inspect the portions of the subject premises and review any conditions that are claimed to constitute a violation of a construction-related accessibility standard.
IN ADDITION, if your business is a small business that, over the previous three years, or the existence of the business if less than three years, employs 25 or fewer employees on average over that time period and meets specified gross receipts criteria, you may also be entitled to the court stay and early evaluation conference and your minimum statutory damages for each claim may be reduced to $2,000 for each offense, unless the violation was intentional, and if all the alleged construction-related accessibility violations are corrected within 30 days of being served with the complaint.
If you plan to correct the violations giving rise to the claim, you should take pictures and measurements or similar action to document the condition of the physical barrier asserted to be the basis for a violation before undertaking any corrective action in case a court needs to see the condition of a barrier before it was corrected.
The court will schedule the conference to be held within 70 days after you file the attached application form.
[If you are not a defendant with a CASp inspection report, until a form is adopted by the Judicial Council, you may use the attached form if you modify the form and supplement it with your declaration stating any one of the following:
(1)Until January 1, 2018, that the sites new construction or improvement on or after January 1, 2008, and before January 1, 2016, was approved pursuant to the local building permit and inspection process; that, to the best of your knowledge, there have been no modifications or alterations completed or commenced since the building department approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(2)That the sites new construction or improvement passed inspection by a local building department inspector who is a certified access specialist; that, to the best of your knowledge, there have been no modifications or alterations completed or commenced since that inspection approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(3)That your business is a small business with 25 or fewer employees and meets the gross receipts criteria set out in Section 55.56 of the Civil Code, and that all violations giving rise to the claim have been corrected, or will be corrected within 30 days of being served with the complaint.]
The court will also issue an immediate stay of the proceedings unless the plaintiff has obtained a temporary restraining order in the construction-related accessibility claim. You may obtain a copy of the application form, filing instructions, and additional information about the stay and early evaluation conference through the Judicial Council Internet Web site at www.courts.ca.gov/selfhelp-start.htm.
You may file the application after you are served with a summons and complaint, but no later than your first court pleading or appearance in this case, which is due within 30 days after you receive the summons and complaint. If you do not file the application, you will still need to file your reply to the lawsuit within 30 days after you receive the summons and complaint to contest it. You may obtain more information about how to represent yourself and how to file a reply without hiring an attorney at www.courts.ca.gov/selfhelp-start.htm.
You may file the application without the assistance of an attorney, but it may be in your best interest to immediately seek the assistance of an attorney experienced in disability access laws when you receive a summons and complaint. You may make an offer to settle the case, and it may be in your interest to put that offer in writing so that it may be considered under Section 55.55 of the Civil Code.
(2)An attorney who files a Notice of Substitution of Counsel to appear as counsel for a plaintiff who, acting in propria persona, had previously filed a complaint in an action that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the same time, cause to be served a copy of the application form specified in subdivision (c) and a copy of the notice specified in paragraph (1) upon the defendant on separate pages that shall be attached to the Notice of Substitution of Counsel.
(b)(1)Notwithstanding any other law, upon being served with a summons and complaint asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, a qualified defendant, or other defendant as defined in paragraph (2), may file a request for a court stay and early evaluation conference in the proceedings of that claim prior to or simultaneous with that defendants responsive pleading or other initial appearance in the action that includes the claim. If that defendant filed a timely request for stay and early evaluation conference before a responsive pleading was due, the period for filing a responsive pleading shall be tolled until the stay is lifted. Any responsive pleading filed simultaneously with a request for stay and early evaluation conference may be amended without prejudice, and the period for filing that amendment shall be tolled until the stay is lifted.
(2)This subdivision shall also apply to a defendant if any of the following apply:
(A)Until January 1, 2018, the sites new construction or improvement on or after January 1, 2008, and before January 1, 2016, was approved pursuant to the local building permit and inspection process, and the defendant declares with the application that, to the best of the defendants knowledge, there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, and that all violations have been corrected, or will be corrected within 60 days of being served with the complaint.
(B)The sites new construction or improvement was approved by a local public building department inspector who is a certified access specialist, and the defendant declares with the application that, to the best of the defendants knowledge, there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, and that all violations have been corrected, or will be corrected within 60 days of being served with the complaint.
(C)The defendant is a small business described in subdivision (f) of Section 55.56, and the defendant declares with the application that all violations have been corrected, or will be corrected within 30 days of being served with the complaint.
(D)The defendant is a business that has been served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55.
(3)Notwithstanding any other law, if the plaintiff had acted in propria persona in filing a complaint that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, a qualified defendant, or a defendant described by paragraph (2), who is served with a Notice of Substitution of Counsel shall have 30 days to file an application for a stay and an early evaluation conference. The application may be filed prior to or after the defendants filing of a responsive pleading or other initial appearance in the action that includes the claim, except that an application may not be filed in a claim in which an early evaluation conference or settlement conference has already been held on the claim.
(c)(1)An application for an early evaluation conference and stay by a qualified defendant shall include a signed declaration that states both of the following:
(A)The site identified in the complaint has been CASp-inspected or meets applicable standards, or is CASp determination pending or has been inspected by a CASp, and if the site is CASp-inspected or meets applicable standards, there have been no modifications completed or commenced since the date of inspection that may impact compliance with construction-related accessibility standards to the best of the defendants knowledge.
(B)An inspection report pertaining to the site has been issued by a CASp. The inspection report shall be provided to the court and the plaintiff at least 15 days prior to the court date set for the early evaluation conference.
(2)An application for an early evaluation conference and stay by a defendant described by subparagraph (A) of paragraph (2) of subdivision (b), which may be filed until January 1, 2018, shall include a signed declaration that states all of the following:
(A)The sites new construction or improvement was approved pursuant to the local building permit and inspection process on or after January 1, 2008, and before January 1, 2016.
(B)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(C)All construction-related violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served upon the defendant.
(3)An application for an early evaluation conference and stay by a defendant described in subparagraph (B) of paragraph (2) of subdivision (b) shall include a signed declaration that states all of the following:
(A)The sites new construction or improvement was approved by a local building department inspector who is a certified access specialist.
(B)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(C)All construction related violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served upon the defendant.
(4)An application for an early evaluation conference and stay by a defendant described by subparagraph (C) of paragraph (2) of subdivision (b) shall include the materials listed in paragraphs (5) and (6) of this subdivision, and shall include a signed declaration that states both of the following:
(A)The defendant is a small business that employs 25 or fewer employees and meets the gross receipts eligibility criteria provided in paragraph (2) of subdivision (f) of Section 55.56.
(B)All construction-related violations giving rise to the claim have been corrected, or will be corrected within 30 days of the complaint being served upon the defendant.
(5)An application for an early evaluation conference and stay by a small business defendant under paragraph (4) shall include evidence showing correction of all violations within 30 days of the service of the complaint and served upon the plaintiff with the reply unless the application is filed prior to completion of the corrections. In that event, the evidence shall be provided to the court and served upon the plaintiff within 10 days of the court order as provided in paragraph (4) of subdivision (d). This paragraph shall not be construed to extend the permissible time under subdivision (f) of Section 55.56 to make the corrections.
(6)An application for an early evaluation conference and stay by a small business defendant under paragraph (4) shall also include both of the following, which shall be confidential documents filed only with the court and not served upon or available to the plaintiff:
(A)Proof of the defendants number of employees, as shown by wage report forms filed with the Employment Development Department.
(B)Proof of the defendants average gross receipts for the previous three years, or for the existence of the business if less than three years, as shown by a federal or state tax document.
(7)An application for an early evaluation conference and stay by a defendant described by subparagraph (D) of paragraph (2) of subdivision (b) shall include a declaration that the defendant was served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55.
(8)The following provisional request and notice forms may be used and filed by a qualified defendant until forms are adopted by the Judicial Council for those purposes pursuant to subdivision (l):
PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE INSERTED(9)The provisional forms and any replacement Judicial Council forms shall include the defendants declaration of proof of service of the application, the notice of the courts order, and the courts order pursuant to subdivision (d).
(d)Upon the filing of an application for stay and early evaluation conference by a qualified defendant, or a defendant described by paragraph (2) of subdivision (b), the court shall immediately issue an order that does all of the following:
(1)Grants a 90-day stay of the proceedings with respect to the construction-related accessibility claim, unless the plaintiff has obtained temporary injunctive relief that is still in place for the construction-related accessibility claim.
(2)Schedules a mandatory early evaluation conference for a date as soon as possible from the date of the order, but in no event later than 70 days after issuance of the order, and in no event earlier than 50 days after the filing of the request.
(3)Directs the parties, and any other person whose authority is required to negotiate and enter into settlement, to appear in person at the time set for the conference. Appearance by counsel shall not satisfy the requirement that the parties or those with negotiation and settlement authority personally appear, provided, however, that the court may allow a party who is unable to attend in person due to his or her disability to participate in the hearing by telephone or other alternative means or through a representative authorized to settle the case.
(4)(A)Directs the qualified defendant to file with the court and serve on the plaintiff a copy of any relevant CASp inspection report at least 15 days before the date of the conference. The CASp inspection report is confidential and is available only as set forth in paragraph (5) of this subdivision and in paragraph (4) of subdivision (e).
(B)Directs a defendant described by subparagraph (A) or (B) of paragraph (2) of subdivision (b) who has filed a declaration stating that the violation or violations have been corrected, or will be corrected within 60 days of service of the complaint to file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days after the completion of the corrections.
(C)Directs a defendant described by subparagraph (C) of paragraph (2) of subdivision (b) who has filed a declaration stating that the violation or violations have been corrected, or will be corrected within 30 days of service of the complaint to file with the court and serve on the plaintiff within 10 days after issuance of the court order evidence of correction of the violation or violations, if that evidence showing correction was not filed previously with the application and served on the plaintiff.
(5)Directs the parties that the CASp inspection report may be disclosed only to the court, the parties to the action, the parties attorneys, those individuals employed or retained by the attorneys to assist in the litigation, and insurance representatives or others involved in the evaluation and settlement of the case.
(6)If the defendant so requests, directs the parties that no later than 30 days after issuance of the court order the parties and their counsel, accompanied by their experts if the parties so elect, shall meet in person at the subject premises. They shall jointly inspect the portions of the subject premises, and shall review any programmatic or policy issues, that are claimed to constitute a violation of a construction-related accessibility standard. The court may allow a plaintiff who is unable to meet in person at the subject premises to be excused from participating in a site visit or to participate by telephone or other alternative means for good cause. A plaintiff or plaintiffs counsel is not required, but may agree, to attend more than one in-person site meeting. A site inspection pursuant to this paragraph shall not affect the right of the parties to conduct otherwise appropriate discovery.
(7)Directs the plaintiff to file with the court and serve on the defendant at least 15 days before the date of the conference a statement that includes, to the extent reasonably known, for use solely for the purpose of the early evaluation conference, all of the following:
(A)An itemized list of specific conditions on the subject premises that are the basis of the claimed violations of construction-related accessibility standards in the plaintiffs complaint.
(B)The amount of damages claimed.
(C)The amount of attorneys fees and costs incurred to date, if any, that are being claimed.
(D)Any demand for settlement of the case in its entirety.
(e)(1)A party failing to comply with any court order may be subject to court sanction at the courts discretion.
(2)(A)The court shall lift the stay when the defendant has failed to file and serve the CASp inspection report prior to the early evaluation conference and has failed also to produce the report at the time of the early evaluation conference, unless the defendant shows good cause for that failure.
(B)The court shall lift the stay when a defendant described by paragraph (2) of subdivision (b) has failed to file and serve the evidence showing correction of the violation or violations as required by law.
(3)The court may lift the stay at the conclusion of the early evaluation conference upon a showing of good cause by the plaintiff. Good cause may include the defendants failure to make reasonably timely progress toward completion of corrections noted by a CASp.
(4)The CASp inspection report filed and served pursuant to subdivision (d) shall remain confidential throughout the stay and shall continue to be confidential until the conclusion of the claim, whether by dismissal, settlement, or final judgment, unless there is a showing of good cause by any party. Good cause may include the defendants failure to make reasonably timely progress toward completion of corrections noted by a CASp. The confidentiality of the inspection report shall terminate upon the conclusion of the claim, unless the owner of the report obtains a court order pursuant to the California Rules of Court to seal the record.
(f)All discussions at the early evaluation conference shall be subject to Section 1152 of the Evidence Code. It is the intent of the Legislature that the purpose of the evaluation conference shall include, but not be limited to, evaluation of all of the following, as applicable:
(1)Whether the defendant is entitled to the 90-day stay for some or all of the identified issues in the case, as a qualified defendant.
(2)The current condition of the site and the status of any plan of corrections, including whether the qualified defendant has corrected or is willing to correct the alleged violations, and the timeline for doing so.
(3)Whether subdivision (f) of Section 55.56 may be applicable to the case, and whether all violations giving rise to the claim have been corrected within the specified time periods.
(4)Whether the case, including any claim for damages or injunctive relief, can be settled in whole or in part.
(5)Whether the parties should share other information that may facilitate early evaluation and resolution of the dispute.
(g)Nothing in this section precludes any party from making an offer to compromise pursuant to Section 998 of the Code of Civil Procedure.
(h)For a claim involving a qualified defendant, as provided in paragraph (1) of subdivision (b), the court may schedule additional conferences and may extend the 90-day stay for good cause shown, but not to exceed one additional 90-day extension.
(i)Early evaluation conferences shall be conducted by a superior court judge or commissioner, or a court early evaluation conference officer. A commissioner shall not be qualified to conduct early evaluation conferences pursuant to this subdivision unless he or she has received training regarding disability access requirements imposed by the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), state laws that govern access to public facilities, and federal and state regulations adopted pursuant to those laws. For purposes of this subdivision, a court early evaluation conference officer means an attorney employed by the court who has received training regarding disability access requirements imposed by the federal Americans with Disabilities Act of 1990, state laws that govern access to public facilities, and federal and state regulations adopted pursuant to those laws. Attorneys serving in this capacity may also be utilized by the court for other purposes not related to these proceedings.
(j)Nothing in this part shall be deemed to make any inspection report, opinion, statement, or other finding or conclusion of a CASp binding on the court, or to abrogate in any manner the ultimate authority of the court to make all appropriate findings of fact and law. The CASp inspection report and any opinion, statement, finding, or conclusion therein shall be given the weight the trier of fact finds that it deserves.
(k)Nothing in this part shall be construed to invalidate or limit any California construction-related accessibility standard that provides greater or equal protection for the rights of individuals with disabilities than is afforded by the federal Americans with Disabilities Act (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.) and the federal regulations adopted pursuant to that act.
(l)(1)The Judicial Council shall, by January 1, 2013, prepare and post on its Internet Web site instructions and a form for use by a qualified defendant, or other defendant described by paragraph (2) of subdivision (b), to file an application for stay and early evaluation conference as provided in subdivisions (b) and (c), a form for the courts notice of stay and early evaluation conference, and any other forms appropriate to implement the provisions relating to early evaluation conferences. Until those forms are adopted, the Judicial Council shall post on its Internet Web site the provisional forms set forth in subdivision (c).
(2)Until the adoption of the forms as provided in paragraph (1), the provisional application form may be used by a defendant described by paragraph (2) of subdivision (b).
(3)In lieu of the provisions specified in number 3 of page 1 of the application form set forth in paragraph (7) of subdivision (c), the application shall include one of the following declarations of the defendant as to the basis for the application, as follows:
(A)That all of the following apply to a defendant described by subparagraph (A) of paragraph (2) of subdivision (b):
(i)The sites new construction or improvement was approved pursuant to the local building permit and inspection process on or after January 1, 2008, and before January 1, 2016.
(ii)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(iii)All the violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(B)That all of the following apply to a defendant described by subparagraph (B) of paragraph (2) of subdivision (b):
(i)The sites new construction or improvement was approved by a local public building department inspector who is a certified access specialist.
(ii)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(iii)All the violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(C)That both of the following apply to a defendant described by subparagraph (C) of paragraph (2) of subdivision (b):
(i)The defendant is a small business described in paragraph (2) of subdivision (f) of Section 55.56.
(ii)The violation or violations giving rise to the claim have been corrected, or will be corrected within 30 days of the complaint being served.
(4)In lieu of the provision specified in number 4(c) of page 1 of the application form set forth in paragraph (7) of subdivision (c), the application shall include a request that the court order the defendant to do either of the following:
(A)For a defendant who has filed a declaration stating that all violations have been corrected, or will be corrected within 60 days of service of the complaint, file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days of the completion of the corrections.
(B)For a defendant who is a small business that has filed a declaration stating that all the violations have been corrected, or will be corrected within 30 days of the service of the complaint, file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days after issuance of the court order, if that evidence showing correction was not filed previously with the application and served on the plaintiff.
(5)The Judicial Council shall also prepare and post on its Internet Web site instructions and cover pages to assist plaintiffs and defendants, respectively, to comply with their filing responsibilities under subdivision (d). The cover pages shall also provide for the partys declaration of proof of service of the pertinent document served under the court order.
(m)The stay provisions shall not apply to any construction-related accessibility claim in which the plaintiff has been granted temporary injunctive relief that remains in place.
(n)This section shall not apply to any action brought by the Attorney General, or by any district attorney, city attorney, or county counsel.
(o)The amendments to this section made by Senate Bill 1186 of the 201112 Regular Session of the Legislature shall apply only to claims filed on or after the operative date of that act. Nothing in this part is intended to affect any complaint filed before that date.
(p)Nothing in this part is intended to affect existing law regarding class action requirements.
SEC. 4.Section 425.50 of the Code of Civil Procedure is amended to read:425.50.(a)An allegation of a construction-related accessibility claim in a complaint, as defined in subdivision (a) of Section 55.52 of the Civil Code, shall state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim, including all of the following:
(1)A plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred, with sufficient information about the location of the alleged barrier to enable a reasonable person to identify the access barrier.
(2)The way in which the barrier denied the individual full and equal use or access, or in which it deterred the individual, on each particular occasion.
(3)The date or dates of each particular occasion on which the claimant encountered the specific access barrier, or on which he or she was deterred.
(4)(A)Except in complaints that allege physical injury or damage to property, a complaint filed by or on behalf of a high-frequency litigant shall also state all of the following:
(i)That the complaint is filed by, or on behalf of, a high-frequency litigant.
(ii)In the case of a high-frequency litigant who is a plaintiff, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint.
(iii)In the case of a high-frequency litigant who is a plaintiff, the reason the individual was in the geographic area of the defendants business.
(iv)In the case of a high-frequency litigant who is a plaintiff, the reason why the individual desired to access the defendants business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose.
(B)As used in this section high-frequency litigant has the same meaning as set forth in subdivision (b) of Section 425.55.
(b)A complaint alleging a construction-related accessibility claim, as those terms are defined in subdivision (a) of Section 55.3 of the Civil Code, shall be verified by the plaintiff. A complaint filed without verification shall be subject to a motion to strike.
(c)A complaint alleging a construction-related accessibility claim shall be signed by at least one attorney of record in the attorneys individual name, or, if the party is not represented by an attorney, shall be signed by the party. By signing the complaint, the attorney or unrepresented party is certifying that, to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
(1)It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(2)The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
(3)The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4)The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(d)A court may, after notice and a reasonable opportunity to respond, determine whether subdivision (c) has been violated and, if so, impose sanctions as provided in Section 128.7 for violations of subdivision (b) of Section 128.7.
(e)Nothing in this section shall limit the right of a plaintiff to amend a complaint under Section 472, or with leave of the court under Section 473. However, an amended pleading alleging a construction-related accessibility claim shall be pled as required by subdivision (a).
(f)This section shall become operative on January 1, 2013.
SEC. 5.Section 425.55 is added to the Code of Civil Procedure, to read read:425.55.(a)The Legislature finds and declares all of the following:
(1)Protection of the civil rights of persons with disabilities is of the utmost importance to this state, and private enforcement is the essential means of achieving that goal, as the law has been designed.
(2)According to information from the California Commission on Disability Access, more than one-half, or 54 percent, of all construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms. Forty-six percent of all complaints were filed by a total of 14 parties. Therefore, a very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year. Moreover, these lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the accessibility violation. This practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations as they are entitled to have full and equal access under the states Unruh Civil Rights Act (Chapter 1 (commencing with Section 1801 of Title 2) (Section 51 of the Civil Code) and the federal Americans with Disability Act of 1990 (Public Law 101-336).
(3)Therefore, given these special and unique circumstances, the provisions of this section are warranted for this limited group of plaintiffs.
(b)For the purposes of this article, high-frequency litigant means a person who utilizes court resources in actions arising from alleged construction-related access violations at such a high level that it is appropriate that additional safeguards apply so as to ensure that the claims are warranted and appropriate. A high-frequency litigant means one or more of the following:
(1)A plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.
(2)An attorney who has represented 10 or more plaintiffs in complaints alleging a construction-related accessibility violation who were high-frequency litigants at the time when complaints alleging construction-related accessibility violations were filed on their behalf within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.
SEC. 6.Section 68085.35 is added to the Government Code, immediately following Section 68085.3, to read:68085.35.(a)Fees collected under Section 70616.5 shall be deposited in a bank account established by the Administrative Office of the Courts for deposit of fees collected by the courts.
(b)For each one-thousand-dollar ($1,000) fee listed in subdivision (a), the Administrative Office of the Courts shall distribute specified amounts as follows:
(1)Five hundred dollars ($500) to the General Fund for use, upon appropriation by the Legislature, by the California Commission on Disability Access.
(2)The remainder of the fee to the Trial Court Trust Fund.
(c)If any of the fees listed in subdivision (a) are reduced or partially waived, the amount of the reduction or partial waiver shall be deducted from the amount to be distributed to each fund in the same proportion as the amount each distribution bears to the total amount of the fee.
(d)No revenue collected pursuant to Section 70616.5 shall be used to supplant existing program funding of the California Commission on Disability Access.
SEC. 7.Section 70616.5 is added to the Government Code, to read:70616.5.(a)The Legislature finds and declares all of the following:
(1)The total fees and costs paid by litigants do not directly correspond to the total costs of providing access to the judicial system, the actual costs are much higher.
(2)Much of the actual court costs are supported by taxpayer dollars because there is a strong public policy to make access to the judicial system affordable for all.
(3)The public policy reasons for mitigating the financial burden on litigants is not as strong in the case of a high-frequency litigant, as defined in Section 425.55 of the Code of Civil Procedure.
(4)Therefore, for reasons set forth in Section 425.55 of the Code of Civil Procedure, the Legislature finds that it is appropriate that a high-frequency litigant pay fees that more closely resemble, but do not exceed, the total courts costs related to the action.
(b)
70616.5.(a)In addition to the first paper filing fee required by Section 70611 or 70613, a single high-frequency litigant fee shall be paid to the clerk on behalf of a plaintiff who is a high-frequency litigant, as that term is defined in Section 425.55 of the Code of Civil Procedure, at the time of the filing of the first paper if the complaint alleges a construction-related accessibility claim, as those terms are defined in subdivision (a) of Section 55.3 of the Civil Code.
(c)
(b)The amount of the fee pursuant to established by this section shall be established by the Judicial Council at an amount sufficient to cover, but not exceed, the actual costs to the court resulting from the claim of the high-frequency litigant. The fee shall not exceed one thousand dollars ($1,000). The fee shall be transmitted as provided in Section 68085.35.
(d)
(c)Failure to pay the fees required by this section shall have the same effect as the failure to pay a filing fee, and shall be subject to the same enforcement and penalties.
SEC. 8.The Legislature finds and declares that Section 3 of this act limits the publics right of access to public documents within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest and the need for protecting that interest:
(a)The interest protected by this limitation is the privacy rights of litigants.
(b)The need for protecting those interests is to preclude the chilling effect on litigation if public disclosure were required.
SEC. 9.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SEC. 10.This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to ensure that the courts are not overburdened and are able to provide access to the judicial system for all persons seeking redress of their construction-related accessibility claims, it is necessary that these reasonable requirements placed on high-frequency litigants take effect immediately.
TextPage 20.(a)Notwithstanding any law, the owner of property to which the general public is invited, as set forth in Section 54.1, shall indemnify a microbusiness tenant of that property for any liability under this part arising from any construction-related accessibility claims if either of the following conditions apply: claims, as defined in paragraph (2) of subdivision (a) of Section 55.3, if the owner of the property had knowledge or notice that either of the following applied:
(1)The construction-related barrier existed prior to the initiation, renewal, or extension of the lease which is the basis of the microbusiness tenants liability.
(2)The construction-related barrier was created by parties other than the microbusiness tenant after the initiation, renewal, or extension of the lease which is the basis of the microbusiness tenants liability.
(b)The duty of the owner to indemnify a microbusiness tenant pursuant to subdivision (a) may be modified through a written agreement that may be included as a separate rider to the lease agreement, setting forth the terms under which the microbusiness tenant is accepting some or all of the potential liability for construction-related claims, including, but not limited to, a grant of the authority for the microbusiness tenant to modify the structure in order to comply with this part, and a process for determining the owners share of the costs of those modifications.
(c)For the purposes of this section, microbusiness has the same meaning as set forth in Section 14837 of the Government Code.
(d)This section shall apply only to construction-related liability arising from leases entered into, amended, or extended, on and after January 1, 2016.
SEC. 2.Section 55 of the Civil Code is amended to read:55.Any person who is aggrieved or potentially aggrieved by a violation of Section 54 or 54.1 of this code, Chapter 7 (commencing with Section 4450) of Division 5 of Title 1 of the Government Code, or Part 5.5 (commencing with Section 19955) of Division 13 of the Health and Safety Code may bring an action to enjoin the violation. The court shall award costs and reasonable attorneys fees to a prevailing plaintiff in an action filed pursuant to this section. If the court finds that the plaintiffs case is clearly frivolous, it shall award court costs and reasonable attorneys fees to the defendant.
SEC. 3.SEC. 2.Section 55.3 of the Civil Code is amended to read:55.3.(a)For purposes of this section, the following apply:
(1)Complaint means a civil complaint that is filed or is to be filed with a court and is sent to or served upon a defendant on the basis of one or more construction-related accessibility claims, as defined in this section.
(2)Construction-related accessibility claim means any claim of a violation of any construction-related accessibility standard, as defined by paragraph (6) of subdivision (a) of Section 55.52, with respect to a place of public accommodation. Construction-related accessibility claim does not include a claim of interference with housing within the meaning of paragraph (2) of subdivision (b) of Section 54.1, or any claim of interference caused by something other than the construction-related accessibility condition of the property, including, but not limited to, the conduct of any person.
(3)Demand for money means a prelitigation written document or oral statement that is provided or issued to a building owner or tenant, or the owners or tenants agent or employee, that does all of the following:
(A)Alleges that the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2).
(B)Contains or makes a request or demand for money or an offer or agreement to accept money.
(C)Is provided or issued whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(4)Demand letter means a prelitigation written document that is provided to a building owner or tenant, or the owners or tenants agent or employee, that alleges the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2), and is provided whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(b)An attorney shall provide the following items with each demand letter or complaint sent to or served upon a defendant or potential defendant alleging a construction-related accessibility claim:
(1)A written advisory on the form described in subparagraph (B), or, until that form is available, on a separate page or pages that are clearly distinguishable from the demand letter or complaint. The advisory shall not be required in subsequent communications following the initial demand letter or initial complaint unless a new construction-related accessibility claim is asserted in the subsequent demand letter or amended complaint.
(A)The advisory shall state as follows:
STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY INFORMATION FOR BUILDING OWNERS AND TENANTS
This information is available in English, Spanish, Chinese, Vietnamese, and Korean through the Judicial Council of California. Persons with visual impairments can get assistance in viewing this form through the Judicial Council Internet Web site at www.courts.ca.gov.
California law requires that you receive this information because the demand letter or court complaint you received with this document claims that your building or property does not comply with one or more existing construction-related accessibility laws or regulations protecting the civil rights of persons with disabilities to access public places.
YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability access laws is a serious and significant responsibility that applies to all California building owners and tenants with buildings open for business to the public. You may obtain information about your legal obligations and how to comply with disability access laws through the Division of the State Architect at www.dgs.ca.gov. Information is also available from the California Commission on Disability Access at www.ccda.ca.gov/guide.htm.
YOU HAVE IMPORTANT LEGAL RIGHTS. The allegations made in the accompanying demand letter or court complaint do not mean that you are required to pay any money unless and until a court finds you liable. Moreover, RECEIPT OF A DEMAND LETTER OR COURT COMPLAINT AND THIS ADVISORY DOES NOT NECESSARILY MEAN YOU WILL BE FOUND LIABLE FOR ANYTHING. You will have the right if you are later sued to fully present your explanation why you believe you have not in fact violated disability access laws or have corrected the violation or violations giving rise to the claim.
You have the right to seek assistance or advice about this demand letter or court complaint from any person of your choice. If you have insurance, you may also wish to contact your insurance provider. Your best interest may be served by seeking legal advice or representation from an attorney, but you may also represent yourself and file the necessary court papers to protect your interests if you are served with a court complaint. If you have hired an attorney to represent you, you should immediately notify your attorney.
If a court complaint has been served on you, you will get a separate advisory notice with the complaint advising you of special options and procedures available to you under certain conditions.
ADDITIONAL THINGS YOU SHOULD KNOW:
ATTORNEY MISCONDUCT. Except for limited circumstances, state law generally requires that a prelitigation demand letter from an attorney MAY NOT MAKE A REQUEST OR DEMAND FOR MONEY OR AN OFFER OR AGREEMENT TO ACCEPT MONEY. Moreover, a demand letter from an attorney MUST INCLUDE THE ATTORNEYS STATE BAR LICENSE NUMBER.
If you believe the attorney who provided you with this notice and prelitigation demand letter is not complying with state law, you may send a copy of the demand letter you received from the attorney to the State Bar of California by facsimile transmission to 1-415-538-2171, or by mail to the State Bar of California, 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
REDUCING YOUR DAMAGES. If you are a small business owner and correct all of the construction-related violations that are the basis of the complaint against you within 30 days of being served with the complaint, you may qualify for reduced damages if the matter results in a court judgment. If you believe you qualify for reduced damages, you may wish to consult an attorney to obtain legal advice, or contact the California Commission on Disability Access for additional information about the rights and obligations of business owners.
COMMERCIAL TENANT. If you are a commercial tenant, you may not be responsible for ensuring that some or all portions of the premises you lease for your business, including common areas such as parking lots, are accessible to the public because those areas may be the responsibility of your landlord. You may want to refer to your lease agreement and consult with an attorney or contact your landlord, to determine if your landlord is responsible under the terms of your lease for maintaining and improving some or all of the areas you lease to operate your business.
(B)On or before July 1, 2016, the Judicial Council shall update the advisory form that may be used by an attorney to comply with the requirements of subparagraph (A). The advisory form shall be in substantially the same format and include all of the text set forth in subparagraph (A). The advisory form shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the advisory form is available in additional languages, and the Judicial Council Internet Web site address where the different versions of the advisory form are located. The advisory form shall include Internet Web site information for the Division of the State Architect and the California Commission on Disability Access.
(2)An answer form developed by the Judicial Council, which allows a defendant to respond to the complaint in the event a complaint is filed.
(A)The answer form shall be written in plain language and allow the defendant to state any relevant information affecting the defendants liability or damages including, but not limited to, the following:
(i)Specific denials of the allegations in the complaint, including whether the plaintiff has demonstrated that he or she was denied full and equal access to the place of public accommodation on a particular occasion pursuant to Section 55.56.
(ii)Potential affirmative defenses available to the defendant, including:
(I)An assertion that the defendant qualifies for reduced damages pursuant to paragraph (1) or (2) of subdivision (f) of Section 55.56, and facts supporting that assertion.
(II)An assertion that the defendants landlord is responsible for ensuring that some or all of the property leased by the defendant, including the areas at issue in the complaint, are accessible to the public. The defendant shall provide facts supporting that assertion, and the name and contact information of the defendants landlord.
(III)Any other affirmative defense the defendant wishes to assert.
(iii)Whether the defendant made a written settlement offer that was rejected by the plaintiff, or met with the plaintiff in a good faith effort to negotiate a settlement of the complaint.
(iv)Any other information that the defendant believes is relevant to his or her potential liability or damages.
(B)The answer form shall provide instructions to a defendant who wishes to file the form as an answer to the complaint. The form shall also notify the defendant that he or she may use the completed form as an informal response to a demand letter or for settlement discussion purposes.
(C)On or before July 1, 2016, the Judicial Council shall adopt the answer form that may be used by an attorney to comply with the requirements of this paragraph, and shall post the answer form on the Judicial Council Internet web site.
(c)Subdivision (b) applies only to a demand letter or complaint made by an attorney. This section does not affect the right to file a civil complaint under any other law or regulation protecting the physical access rights of persons with disabilities. Additionally, this section does not require a party to provide or send a demand letter to another party before proceeding against that party with a civil complaint.
(d)This section does not apply to an action brought by the Attorney General or any district attorney, city attorney, or county counsel.
SEC. 4.SEC. 3.Section 55.54 of the Civil Code is amended to read:55.54.(a)(1)An attorney who causes a summons and complaint to be served in an action that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the same time, cause to be served a copy of the application form specified in subdivision (c) and a copy of the following notice, including, until January 1, 2013, the bracketed text, to the defendant on separate papers that shall be served with the summons and complaint:
ADVISORY NOTICE TO DEFENDANT
YOU MAY BE ENTITLED TO ASK FOR A COURT STAY (AN ORDER TEMPORARILY STOPPING ANY LAWSUIT) AND EARLY EVALUATION CONFERENCE IN THIS LAWSUIT AND MAY BE ASSESSED REDUCED STATUTORY DAMAGES IF YOU MEET CERTAIN CONDITIONS.
If the construction-related accessibility claim pertains to a site that has a Certified Access Specialist (CASp) inspection report for that site, or to a site where new construction or improvement was approved after January 1, 2008, by the local building permit and inspection process, you may make an immediate request for a court stay and early evaluation conference in the construction-related accessibility claim by filing the attached application form with the court. You may be entitled to the court stay and early evaluation conference regarding the accessibility claim only if ALL of the statements in the application form applicable to you are true.
FURTHER, if you are a defendant described above (with a CASp inspection report or with new construction after January 1, 2008), and, to the best of your knowledge, there have been no modifications or alterations completed or commenced since the CASp report or building department approval of the new construction or improvement that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, your liability for minimum statutory damages may be reduced to $1,000 for each offense, unless the violation was intentional, and if all construction-related accessibility violations giving rise to the claim are corrected within 60 days of being served with this complaint.
ALSO, if your business has been served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55 of the Civil Code, you may also be entitled to a court stay, early evaluation conference, and a site visit. If you choose to request a stay and early evaluation conference, you may also request to meet in person with the plaintiff and counsel for both parties, as well as experts if the parties so elect, at the subject premises no later than 30 days after issuance of the court order to jointly inspect the portions of the subject premises and review any conditions that are claimed to constitute a violation of a construction-related accessibility standard.
If you plan to correct the violations giving rise to the claim, you should take pictures and measurements or similar action to document the condition of the physical barrier asserted to be the basis for a violation before undertaking any corrective action in case a court needs to see the condition of a barrier before it was corrected.
The court will schedule the conference to be held within 90 70 days after you file the attached application form.
[If you are not a defendant with a CASp inspection report, until a form is adopted by the Judicial Council, you may use the attached form if you modify the form and supplement it with your declaration stating any one of the following:
(1)Until January 1, 2018, that the sites new construction or improvement on or after January 1, 2008, and before January 1, 2016, was approved pursuant to the local building permit and inspection process; that, to the best of your knowledge, there have been no modifications or alterations completed or commenced since the building department approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(2)That the sites new construction or improvement passed inspection by a local building department inspector who is a certified access specialist; that, to the best of your knowledge, there have been no modifications or alterations completed or commenced since that inspection approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(3)That your business is a small business with 25 or fewer employees and meets the gross receipts criteria set out in Section 55.56 of the Civil Code, and that all violations giving rise to the claim have been corrected, or will be corrected within 30 days of being served with the complaint.]
The court will also issue an immediate stay of the proceedings unless the plaintiff has obtained a temporary restraining order in the construction-related accessibility claim. You may obtain a copy of the application form, filing instructions, and additional information about the stay and early evaluation conference through the Judicial Council Internet Web site at www.courts.ca.gov/selfhelp-start.htm.
You may file the application after you are served with a summons and complaint, but no later than your first court pleading or appearance in this case, which is due within 30 days after you receive the summons and complaint. If you do not file the application, you will still need to file your reply to the lawsuit within 30 days after you receive the summons and complaint to contest it. You may obtain more information about how to represent yourself and how to file a reply without hiring an attorney at www.courts.ca.gov/selfhelp-start.htm.
You may file the application without the assistance of an attorney, but it may be in your best interest to immediately seek the assistance of an attorney experienced in disability access laws when you receive a summons and complaint. You may make an offer to settle the case, and it may be in your interest to put that offer in writing so that it may be considered under Section 55.55 of the Civil Code.
(2)An attorney who files a Notice of Substitution of Counsel to appear as counsel for a plaintiff who, acting in propria persona, had previously filed a complaint in an action that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the same time, cause to be served a copy of the application form specified in subdivision (c) and a copy of the notice specified in paragraph (1) upon the defendant on separate pages that shall be attached to the Notice of Substitution of Counsel.
(b)(1)Notwithstanding any other law, upon being served with a summons and complaint asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, a qualified defendant, or other defendant as defined in paragraph (2), may file a request for a court stay and early evaluation conference in the proceedings of that claim prior to or simultaneous with that defendants responsive pleading or other initial appearance in the action that includes the claim. If that defendant filed a timely request for stay and early evaluation conference before a responsive pleading was due, the period for filing a responsive pleading shall be tolled until the stay is lifted. Any responsive pleading filed simultaneously with a request for stay and early evaluation conference may be amended without prejudice, and the period for filing that amendment shall be tolled until the stay is lifted.
(2)This subdivision shall also apply to a defendant if any of the following apply:
(A)Until January 1, 2018, the sites new construction or improvement on or after January 1, 2008, and before January 1, 2016, was approved pursuant to the local building permit and inspection process, and the defendant declares with the application that, to the best of the defendants knowledge, there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, and that all violations have been corrected, or will be corrected within 60 days of being served with the complaint.
(B)The sites new construction or improvement was approved by a local public building department inspector who is a certified access specialist, and the defendant declares with the application that, to the best of the defendants knowledge, there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, and that all violations have been corrected, or will be corrected within 60 days of being served with the complaint.
(C)The defendant is a small business described in subdivision (f) of Section 55.56, and the defendant declares with the application that all violations have been corrected, or will be corrected within 30 days of being served with the complaint.
(D)The defendant is a small business, as described in subdivision (f) of Section 55.56, business that has been served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55.
(3)Notwithstanding any other law, if the plaintiff had acted in propria persona in filing a complaint that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, a qualified defendant, or a defendant described by paragraph (2), who is served with a Notice of Substitution of Counsel shall have 30 days to file an application for a stay and an early evaluation conference. The application may be filed prior to or after the defendants filing of a responsive pleading or other initial appearance in the action that includes the claim, except that an application may not be filed in a claim in which an early evaluation conference or settlement conference has already been held on the claim.
(c)(1)An application for an early evaluation conference and stay by a qualified defendant shall include a signed declaration that states both of the following:
(A)The site identified in the complaint has been CASp-inspected or meets applicable standards, or is CASp determination pending or has been inspected by a CASp, and if the site is CASp-inspected or meets applicable standards, there have been no modifications completed or commenced since the date of inspection that may impact compliance with construction-related accessibility standards to the best of the defendants knowledge.
(B)An inspection report pertaining to the site has been issued by a CASp. The inspection report shall be provided to the court and the plaintiff at least 15 days prior to the court date set for the early evaluation conference.
(2)An application for an early evaluation conference and stay by a defendant described by subparagraph (A) of paragraph (2) of subdivision (b), which may be filed until January 1, 2018, shall include a signed declaration that states all of the following:
(A)The sites new construction or improvement was approved pursuant to the local building permit and inspection process on or after January 1, 2008, and before January 1, 2016.
(B)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(C)All construction-related violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served upon the defendant.
(3)An application for an early evaluation conference and stay by a defendant described in subparagraph (B) of paragraph (2) of subdivision (b) shall include a signed declaration that states all of the following:
(A)The sites new construction or improvement was approved by a local building department inspector who is a certified access specialist.
(B)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(C)All construction related violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served upon the defendant.
(4)An application for an early evaluation conference and stay by a defendant described by subparagraph (C) of paragraph (2) of subdivision (b) shall include the materials listed in paragraphs (5) and (6) of this subdivision, and shall include a signed declaration that states both of the following:
(A)The defendant is a small business that employs 25 or fewer employees and meets the gross receipts eligibility criteria provided in paragraph (2) of subdivision (f) of Section 55.56.
(B)All construction-related violations giving rise to the claim have been corrected, or will be corrected within 30 days of the complaint being served upon the defendant.
(5)An application for an early evaluation conference and stay by a small business defendant under paragraph (4) shall include evidence showing correction of all violations within 30 days of the service of the complaint and served upon the plaintiff with the reply unless the application is filed prior to completion of the corrections. In that event, the evidence shall be provided to the court and served upon the plaintiff within 10 days of the court order as provided in paragraph (4) of subdivision (d). This paragraph shall not be construed to extend the permissible time under subdivision (f) of Section 55.56 to make the corrections.
(6)An application for an early evaluation conference and stay by a small business defendant under paragraph (4) shall also include both of the following, which shall be confidential documents filed only with the court and not served upon or available to the plaintiff:
(A)Proof of the defendants number of employees, as shown by wage report forms filed with the Employment Development Department.
(B)Proof of the defendants average gross receipts for the previous three years, or for the existence of the business if less than three years, as shown by a federal or state tax document.
(7)An application for an early evaluation conference and stay by a defendant described by subparagraph (D) of paragraph (2) of subdivision (b) shall include a declaration that the defendant is a small business that employs 25 or fewer employees and meets the gross receipts eligibility criteria provided in paragraph (2) of subdivision (f) of Section 55.56 and shall also include both of the following, which shall be confidential documents filed only with the court and not served upon or available to the plaintiff:
(A)Proof of the defendants number of employees, as shown by wage report forms filed with the Employment Development Department.
(B)Proof of the defendants average gross receipts for the previous three years, or for the existence of the business if less than three years, as shown by a federal or state tax document. was served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55.
(8)The following provisional request and notice forms may be used and filed by a qualified defendant until forms are adopted by the Judicial Council for those purposes pursuant to subdivision (l):
PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE INSERTED(9)The provisional forms and any replacement Judicial Council forms shall include the defendants declaration of proof of service of the application, the notice of the courts order, and the courts order pursuant to subdivision (d).
(d)Upon the filing of an application for stay and early evaluation conference by a qualified defendant, or a defendant described by paragraph (2) of subdivision (b), the court shall immediately issue an order that does all of the following:
(1)Grants a 90-day stay of the proceedings with respect to the construction-related accessibility claim, unless the plaintiff has obtained temporary injunctive relief that is still in place for the construction-related accessibility claim.
(2)Schedules a mandatory early evaluation conference for a date as soon as possible from the date of the order, but in no event later than 70 days after issuance of the order, and in no event earlier than 50 days after the filing of the request.
(3)Directs the parties, and any other person whose authority is required to negotiate and enter into settlement, to appear in person at the time set for the conference. Appearance by counsel shall not satisfy the requirement that the parties or those with negotiation and settlement authority personally appear, provided, however, that the court may allow a party who is unable to attend in person due to his or her disability to participate in the hearing by telephone or other alternative means or through a representative authorized to settle the case.
(4)(A)Directs the qualified defendant to file with the court and serve on the plaintiff a copy of any relevant CASp inspection report at least 15 days before the date of the conference. The CASp inspection report is confidential and is available only as set forth in paragraph (5) of this subdivision and in paragraph (4) of subdivision (e).
(B)Directs a defendant described by subparagraph (A) or (B) of paragraph (2) of subdivision (b) who has filed a declaration stating that the violation or violations have been corrected, or will be corrected within 60 days of service of the complaint to file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days after the completion of the corrections.
(C)Directs a defendant described by subparagraph (C) of paragraph (2) of subdivision (b) who has filed a declaration stating that the violation or violations have been corrected, or will be corrected within 30 days of service of the complaint to file with the court and serve on the plaintiff within 10 days after issuance of the court order evidence of correction of the violation or violations, if that evidence showing correction was not filed previously with the application and served on the plaintiff.
(5)Directs the parties that the CASp inspection report may be disclosed only to the court, the parties to the action, the parties attorneys, those individuals employed or retained by the attorneys to assist in the litigation, and insurance representatives or others involved in the evaluation and settlement of the case.
(6)If the defendant so requests, directs the parties that no later than 30 days after issuance of the court order the parties and their counsel, accompanied by their experts if the parties so elect, shall meet in person at the subject premises. If plaintiff alleges only programmatic or policy violations, the parties and their counsel may meet in person at any mutually agreeable location. They shall jointly inspect the portions of the subject premises, and shall review any programmatic or policy issues, that are claimed to constitute a violation of a construction-related accessibility standard.
(7)Directs the plaintiff to file with the court and serve on the defendant at least 15 days before the date of the conference a statement that includes, to the extent reasonably known, for use solely for the purpose of the early evaluation conference, all of the following:
(A)An itemized list of specific conditions on the subject premises that are the basis of the claimed violations of construction-related accessibility standards in the plaintiffs complaint.
(B)The amount of damages claimed.
(C)The amount of attorneys fees and costs incurred to date, if any, that are being claimed.
(D)Any demand for settlement of the case in its entirety.
(e)(1)A party failing to comply with any court order may be subject to court sanction at the courts discretion.
(2)(A)The court shall lift the stay when the defendant has failed to file and serve the CASp inspection report prior to the early evaluation conference and has failed also to produce the report at the time of the early evaluation conference, unless the defendant shows good cause for that failure.
(B)The court shall lift the stay when a defendant described by paragraph (2) of subdivision (b) has failed to file and serve the evidence showing correction of the violation or violations as required by law.
(3)The court may lift the stay at the conclusion of the early evaluation conference upon a showing of good cause by the plaintiff. Good cause may include the defendants failure to make reasonably timely progress toward completion of corrections noted by a CASp.
(4)The CASp inspection report filed and served pursuant to subdivision (d) shall remain confidential throughout the stay and shall continue to be confidential until the conclusion of the claim, whether by dismissal, settlement, or final judgment, unless there is a showing of good cause by any party. Good cause may include the defendants failure to make reasonably timely progress toward completion of corrections noted by a CASp. The confidentiality of the inspection report shall terminate upon the conclusion of the claim, unless the owner of the report obtains a court order pursuant to the California Rules of Court to seal the record.
(f)All discussions at the early evaluation conference shall be subject to Section 1152 of the Evidence Code. It is the intent of the Legislature that the purpose of the evaluation conference shall include, but not be limited to, evaluation of all of the following, as applicable:
(1)Whether the defendant is entitled to the 90-day stay for some or all of the identified issues in the case, as a qualified defendant.
(2)The current condition of the site and the status of any plan of corrections, including whether the qualified defendant has corrected or is willing to correct the alleged violations, and the timeline for doing so.
(3)Whether subdivision (f) of Section 55.56 may be applicable to the case, and whether all violations giving rise to the claim have been corrected within the specified time periods.
(4)Whether the case, including any claim for damages or injunctive relief, can be settled in whole or in part.
(5)Whether the parties should share other information that may facilitate early evaluation and resolution of the dispute.
(g)Nothing in this section precludes any party from making an offer to compromise pursuant to Section 998 of the Code of Civil Procedure.
(h)For a claim involving a qualified defendant, as provided in paragraph (1) of subdivision (b), the court may schedule additional conferences and may extend the 90-day stay for good cause shown, but not to exceed one additional 90-day extension.
(i)Early evaluation conferences shall be conducted by a superior court judge or commissioner, or a court early evaluation conference officer. A commissioner shall not be qualified to conduct early evaluation conferences pursuant to this subdivision unless he or she has received training regarding disability access requirements imposed by the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), state laws that govern access to public facilities, and federal and state regulations adopted pursuant to those laws. For purposes of this subdivision, a court early evaluation conference officer means an attorney employed by the court who has received training regarding disability access requirements imposed by the federal Americans with Disabilities Act of 1990, state laws that govern access to public facilities, and federal and state regulations adopted pursuant to those laws. Attorneys serving in this capacity may also be utilized by the court for other purposes not related to these proceedings.
(j)Nothing in this part shall be deemed to make any inspection report, opinion, statement, or other finding or conclusion of a CASp binding on the court, or to abrogate in any manner the ultimate authority of the court to make all appropriate findings of fact and law. The CASp inspection report and any opinion, statement, finding, or conclusion therein shall be given the weight the trier of fact finds that it deserves.
(k)Nothing in this part shall be construed to invalidate or limit any California construction-related accessibility standard that provides greater or equal protection for the rights of individuals with disabilities than is afforded by the federal Americans with Disabilities Act (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.) and the federal regulations adopted pursuant to that act.
(l)(1)The Judicial Council shall, by January 1, 2013, prepare and post on its Internet Web site instructions and a form for use by a qualified defendant, or other defendant described by paragraph (2) of subdivision (b), to file an application for stay and early evaluation conference as provided in subdivisions (b) and (c), a form for the courts notice of stay and early evaluation conference, and any other forms appropriate to implement the provisions relating to early evaluation conferences. Until those forms are adopted, the Judicial Council shall post on its Internet Web site the provisional forms set forth in subdivision (c).
(2)Until the adoption of the forms as provided in paragraph (1), the provisional application form may be used by a defendant described by paragraph (2) of subdivision (b).
(3)In lieu of the provisions specified in number 3 of page 1 of the application form set forth in paragraph (7) of subdivision (c), the application shall include one of the following declarations of the defendant as to the basis for the application, as follows:
(A)That all of the following apply to a defendant described by subparagraph (A) of paragraph (2) of subdivision (b):
(i)The sites new construction or improvement was approved pursuant to the local building permit and inspection process on or after January 1, 2008, and before January 1, 2016.
(ii)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(iii)All the violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(B)That all of the following apply to a defendant described by subparagraph (B) of paragraph (2) of subdivision (b):
(i)The sites new construction or improvement was approved by a local public building department inspector who is a certified access specialist.
(ii)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(iii)All the violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(C)That both of the following apply to a defendant described by subparagraph (C) of paragraph (2) of subdivision (b):
(i)The defendant is a small business described in paragraph (2) of subdivision (f) of Section 55.56.
(ii)The violation or violations giving rise to the claim have been corrected, or will be corrected within 30 days of the complaint being served.
(4)In lieu of the provision specified in number 4(c) of page 1 of the application form set forth in paragraph (7) of subdivision (c), the application shall include a request that the court order the defendant to do either of the following:
(A)For a defendant who has filed a declaration stating that all violations have been corrected, or will be corrected within 60 days of service of the complaint, file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days of the completion of the corrections.
(B)For a defendant who is a small business that has filed a declaration stating that all the violations have been corrected, or will be corrected within 30 days of the service of the complaint, file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days after issuance of the court order, if that evidence showing correction was not filed previously with the application and served on the plaintiff.
(5)The Judicial Council shall also prepare and post on its Internet Web site instructions and cover pages to assist plaintiffs and defendants, respectively, to comply with their filing responsibilities under subdivision (d). The cover pages shall also provide for the partys declaration of proof of service of the pertinent document served under the court order.
(m)The stay provisions shall not apply to any construction-related accessibility claim in which the plaintiff has been granted temporary injunctive relief that remains in place.
(n)This section shall not apply to any action brought by the Attorney General, or by any district attorney, city attorney, or county counsel.
(o)The amendments to this section made by Senate Bill 1186 of the 201112 Regular Session of the Legislature shall apply only to claims filed on or after the operative date of that act. Nothing in this part is intended to affect any complaint filed before that date.
(p)Nothing in this part is intended to affect existing law regarding class action requirements.
SEC. 5.SEC. 4.Section 425.50 of the Code of Civil Procedure is amended to read:425.50.(a)An allegation of a construction-related accessibility claim in a complaint, as defined in subdivision (a) of Section 55.52 of the Civil Code, shall state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim, including all of the following:
(1)A plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred, with sufficient information about the location of the alleged barrier to enable a reasonable person to identify the access barrier.
(2)The way in which the barrier denied the individual full and equal use or access, or in which it deterred the individual, on each particular occasion.
(3)The date or dates of each particular occasion on which the claimant encountered the specific access barrier, or on which he or she was deterred.
(4)(A)Except in complaints that allege physical injury or damage to property, a complaint filed by or on behalf of a high-frequency litigant shall also state all of the following:
(i)That the complaint is filed by, or on behalf of, a high-frequency litigant.
(ii)The In the case of a high-frequency litigant who is a plaintiff, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint.
(iii)The In the case of a high-frequency litigant who is a plaintiff, the reason the individual was in the geographic area of the defendants business.
(iv)The In the case of a high-frequency litigant who is a plaintiff, the reason why the individual desired to access the defendants business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose.
(B)As used in this section high-frequency litigant has the same meaning as set forth in subdivision (b) of Section 425.55.
(b)A complaint alleging a construction-related accessibility claim, as those terms are defined in subdivision (a) of Section 55.3 of the Civil Code, shall be verified by the plaintiff. A complaint filed without verification shall be subject to a motion to strike.
(c)A complaint alleging a construction-related accessibility claim shall be signed by at least one attorney of record in the attorneys individual name, or, if the party is not represented by an attorney, shall be signed by the party. By signing the complaint, the attorney or unrepresented party is certifying that, to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
(1)It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(2)The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
(3)The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4)The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(d)A court may, after notice and a reasonable opportunity to respond, determine whether subdivision (c) has been violated and, if so, impose sanctions as provided in Section 128.7 for violations of subdivision (b) Section 128.7.
(e)Nothing in this section shall limit the right of a plaintiff to amend a complaint under Section 472, or with leave of the court under Section 473. However, an amended pleading alleging a construction-related accessibility claim shall be pled as required by subdivision (a).
(f)This section shall become operative on January 1, 2013.
SEC. 6.SEC. 5.Section 425.55 is added to the Code of Civil Procedure, to read425.55.(a)The Legislature finds and declares all of the following:
(1)Protection of the civil rights of persons with disabilities is of the utmost importance to this state, and private enforcement is the essential means of achieving that goal, as the law has been designed.
(2)In recent years, a very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year, that are filed frequently against small businesses on the basis of boilerplate complaints.
(2)According to information from the California Commission on Disability Access, more than one-half, or 54 percent, of all construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms. Forty-six percent of all complaints were filed by a total of 14 parties. Therefore, a very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year. Moreover, these lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the accessibility violation. This practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations as they are entitled to have full and equal access under the states Unruh Act (Chapter 1 (commencing with Section 1801 of Title 2) and the federal Americans with Disability Act of 1990 (Public Law 101-336).
(3)Therefore, given these special and unique circumstances, the provisions of this section are warranted for this limited group of plaintiffs.
(b)For the purposes of this article, high-frequency litigant means a person who utilizes court resources in actions arising from alleged construction-related access violations at such a high level that it is appropriate that additional safeguards apply so as to ensure that the claims are warranted and appropriate. A high-frequency litigant means plaintiff who has filed 15 or one or more of the following:
(1)A plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.
(2)An attorney who has represented 10 or more plaintiffs in complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.
SEC. 7.Section 425.60 is added to the Code of Civil Procedure, to read:425.60.(a)Any written settlement agreement regarding a construction-related accessibility claim shall be filed by the plaintiff with the California Commission on Disability Access within 30 days of the execution of the agreement.
(b)Except as set forth in subdivision (e), a high frequency litigant shall seek and obtain approval of the court with respect to the settlement of a construction-related accessibility claim against a small business as defined by subdivision (f) of section 55.56 to determine that the proposed settlement is lawful, reasonable, and non-collusive.
(c)A party requesting court review of a settlement shall do so by means of a motion for a settlement conference, which shall be scheduled no later than 30 court days after the filing of the motion. If the matter is not scheduled to be heard within 30 court days, the settlement shall be deemed approved. A party requesting a court review of the settlement shall attach a copy of the settlement agreement or a description its material terms in the motion.
(d)If the court does not approve the settlement, it shall state the reasons for decision in a written order and the litigation shall proceed. If the hearing occurs prior to the expiration of a stay of the proceedings pursuant to any provision of law, including, but not limited to, Section 55.54, the court shall terminate the stay on the date of the settlement conference.
(e)This section shall not apply in any of the following circumstances:
(1)The settlement agreement provides for the removal or remediation of some or all of the violations described in the complaint by a specified date, unless removal or remediation of the violations cannot be accomplished because of the closure or elimination of the place of public accommodation or a feature or element of the place of public accommodation or because the public accommodation was temporary or ephemeral in nature, such as an irregularly held festival, fair, performance, or athletic games.
(2)The complaint alleges that the plaintiff suffered physical injuries or damage to property.
(f)Nothing set forth in this section is intended to affect the law of the interpretation of contracts. There is a presumption that settlement agreements shall be enforceable. It shall be deemed bad faith for any party to negotiate a settlement agreement and then dispute the terms thereof at any hearing held under this section absent good cause shown for a change in position. If the defendant seeks to contest a settlement to which the defendant has previously agreed, he or she shall do so by filing a notice of his or her intent to dispute the settlement which shall be accompanied by a declaration setting forth all of the reasons why the party believes that circumstances have changed and that the settlement is no longer just, fair, or enforceable. This notice shall be filed with the court no later than 15 days before the date of the hearing scheduled pursuant to subdivision (c) and shall be served on the plaintiff concurrently with filing.
(g)An attorney who violates this section or Section 425.55, shall be subject to discipline by the State Bar.
SEC. 8.Section 19953 of the Health and Safety Code is amended to read:19953.Any person who is aggrieved or potentially aggrieved by a violation of this part, Chapter 7 (commencing with Section 4450) of Division 5 of Title 1 of the Government Code, or Part 5.5 (commencing with Section 19955) of Division 13 of the Health and Safety Code may bring an action to enjoin the violation. The court shall award costs and reasonable attorneys fees to a prevailing plaintiff in an action filed pursuant to this section. If the court finds that the plaintiffs case is clearly frivolous, it shall award court costs and reasonable attorneys fees to the defendant.
SEC. 9.This act shall become operative only if Senate Bill 251 of the 2015-16 Legislative Session, relating to disability access, is enacted on or before January 1, 2016.
SEC. 6.Section 68085.35 is added to the Government Code, immediately following Section 68085.3, to read:68085.35.(a)Fees collected under Section 70616.5 shall be deposited in a bank account established by the Administrative Office of the Courts for deposit of fees collected by the courts.
(b)For each one-thousand-dollar ($1,000) fee listed in subdivision (a), the Administrative Office of the Courts shall distribute specified amounts as follows:
(1)Five hundred dollars ($500) to the General Fund for use, upon appropriation by the Legislature, by the California Commission on Disability Access.
(2)The remainder of the fee to the Trial Court Trust Fund.
(c)If any of the fees listed in subdivision (a) are reduced or partially waived, the amount of the reduction or partial waiver shall be deducted from the amount to be distributed to each fund in the same proportion as the amount each distribution bears to the total amount of the fee.
(d)No revenue collected pursuant to Section 70616.5 shall be used to supplant existing program funding of the California Commission on Disability Access.
SEC. 7.Section 70616.5 is added to the Government Code, to read:70616.5.(a)The Legislature finds and declares all of the following:
(1)The total fees and costs paid by litigants do not directly correspond to the total costs of providing access to the judicial system, the actual costs are much higher.
(2)Much of the actual court costs are supported by taxpayer dollars because there is a strong public policy to make access to the judicial system affordable for all.
(3)The public policy reasons for mitigating the financial burden on litigants is not as strong in the case of a high-frequency litigant, as defined in Section 425.55 of the Code of Civil Procedure.
(4)Therefore, for reasons set forth in Section 425.55 of the Code of Civil Procedure, the Legislature finds that it is appropriate that a high-frequency litigant pay fees that more closely resemble, but do not exceed, the total courts costs related to the action.
(b)In addition to the first paper filing fee required by Section 70611 or 70613, a single high-frequency litigant fee shall be paid to the clerk on behalf of a plaintiff who is a high-frequency litigant, as that term is defined in Section 425.55 of the Code of Civil Procedure, at the time of the filing of the first paper if the complaint alleges a construction-related accessibility claim, as those terms are defined in subdivision (a) of Section 55.3 of the Civil Code.
(c)The amount of the fee pursuant to this section shall be established by the Judicial Council at an amount sufficient to cover, but not exceed, the actual costs to the court resulting from the claim of the high-frequency litigant. The fee shall not exceed one thousand dollars ($1,000). The fee shall be transmitted as provided in Section 68085.35.
(d)Failure to pay the fees required by this section shall have the same effect as the failure to pay a filing fee, and shall be subject to the same enforcement and penalties.
SEC. 10.SEC. 8.The Legislature finds and declares that Section 4 3 of this act limits the publics right of access to public documents within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest and the need for protecting that interest:
(a)The interest protected by this limitation is the privacy rights of litigants.
(b)The need for protecting those interests is to preclude the chilling effect on litigation if public disclosure were required.
SEC. 11.SEC. 9.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SEC. 10.This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to ensure that the courts are not overburdened and are able to provide access to the judicial system for all persons seeking redress of their construction-related accessibility claims, it is necessary that these reasonable requirements placed on high-frequency litigants take effect immediately.
(a)Notwithstanding any law, the owner of property to which the general public is invited, as set forth in Section 54.1, shall indemnify a microbusiness tenant of that property for any liability under this part arising from any construction-related accessibility claims if either of the following conditions apply:
(1)The construction-related barrier existed prior to the initiation, renewal, or extension of the lease which is the basis of the microbusiness tenants liability.
(2)The construction-related barrier was created by parties other than the microbusiness tenant after the initiation, renewal, or extension of the lease which is the basis of the microbusiness tenants liability.
(b)The duty of the owner to indemnify a microbusiness tenant pursuant to subdivision (a) may be modified through a written agreement that may be included as a separate rider to the lease agreement, setting forth the terms under which the microbusiness tenant is accepting some or all of the potential liability for construction-related claims, including, but not limited to, a grant of the authority for the microbusiness tenant to modify the structure in order to comply with this part, and a process for determining the owners share of the costs of those modifications.
(c)For the purposes of this section, microbusiness has the same meaning as set forth in Section 14837 of the Government Code.
(d)This section shall apply only to construction-related liability arising from leases entered into, amended, or extended, on and after January 1, 2016.
SEC. 2.Section 55 of the Civil Code is amended to read:55.Any person who is aggrieved or potentially aggrieved by a violation of Section 54 or 54.1 of this code, Chapter 7 (commencing with Section 4450) of Division 5 of Title 1 of the Government Code, or Part 5.5 (commencing with Section 19955) of Division 13 of the Health and Safety Code may bring an action to enjoin the violation. The prevailing party in the action shall be entitled to recover reasonable attorneys fees. The court shall award costs and reasonable attorneys fees to a prevailing plaintiff in an action filed pursuant to this section. If the court finds that the plaintiffs case is clearly frivolous, it shall award court costs and reasonable attorneys fees to the defendant.
SECTION 1.SEC. 3.Section 55.3 of the Civil Code is amended to read:55.3.(a)For purposes of this section, the following apply:
(1)Complaint means a civil complaint that is filed or is to be filed with a court and is sent to or served upon a defendant on the basis of one or more construction-related accessibility claims, as defined in this section.
(2)Construction-related accessibility claim means any claim of a violation of any construction-related accessibility standard, as defined by paragraph (6) of subdivision (a) of Section 55.52, with respect to a place of public accommodation. Construction-related accessibility claim does not include a claim of interference with housing within the meaning of paragraph (2) of subdivision (b) of Section 54.1, or any claim of interference caused by something other than the construction-related accessibility condition of the property, including, but not limited to, the conduct of any person.
(3)Demand for money means a prelitigation written document or oral statement that is provided or issued to a building owner or tenant, or the owners or tenants agent or employee, that does all of the following:
(A)Alleges that the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2).
(B)Contains or makes a request or demand for money or an offer or agreement to accept money.
(C)Is provided or issued whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(4)Demand letter means a prelitigation written document that is provided to a building owner or tenant, or the owners or tenants agent or employee, that alleges the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2), and is provided whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(b)An attorney shall provide the following items with each demand letter or complaint sent to or served upon a defendant or potential defendant alleging a construction-related accessibility claim:
(1)A written advisory on the form described in subparagraph (B), or, until that form is available, on a separate page or pages that are clearly distinguishable from the demand letter or complaint. The advisory shall not be required in subsequent communications following the initial demand letter or initial complaint unless a new construction-related accessibility claim is asserted in the subsequent demand letter or amended complaint.
(A)The advisory shall state as follows:
STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY INFORMATION FOR BUILDING OWNERS AND TENANTS
This information is available in English, Spanish, Chinese, Vietnamese, and Korean through the Judicial Council of California. Persons with visual impairments can get assistance in viewing this form through the Judicial Council Internet Web site at www.courts.ca.gov.
California law requires that you receive this information because the demand letter or court complaint you received with this document claims that your building or property does not comply with one or more existing construction-related accessibility laws or regulations protecting the civil rights of persons with disabilities to access public places.
YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability access laws is a serious and significant responsibility that applies to all California building owners and tenants with buildings open for business to the public. You may obtain information about your legal obligations and how to comply with disability access laws through the Division of the State Architect at www.dgs.ca.gov. Information is also available from the California Commission on Disability Access at www.ccda.ca.gov/guide.htm.
YOU HAVE IMPORTANT LEGAL RIGHTS. The allegations made in the accompanying demand letter or court complaint do not mean that you are required to pay any money unless and until a court finds you liable. Moreover, RECEIPT OF A DEMAND LETTER OR COURT COMPLAINT AND THIS ADVISORY DOES NOT NECESSARILY MEAN YOU WILL BE FOUND LIABLE FOR ANYTHING. You will have the right if you are later sued to fully present your explanation why you believe you have not in fact violated disability access laws or have corrected the violation or violations giving rise to the claim.
You have the right to seek assistance or advice about this demand letter or court complaint from any person of your choice. If you have insurance, you may also wish to contact your insurance provider. Your best interest may be served by seeking legal advice or representation from an attorney, but you may also represent yourself and file the necessary court papers to protect your interests if you are served with a court complaint. If you have hired an attorney to represent you, you should immediately notify your attorney.
If a court complaint has been served on you, you will get a separate advisory notice with the complaint advising you of special options and procedures available to you under certain conditions.
ADDITIONAL THINGS YOU SHOULD KNOW:
ATTORNEY MISCONDUCT. Except for limited circumstances, state law generally requires that a prelitigation demand letter from an attorney MAY NOT MAKE A REQUEST OR DEMAND FOR MONEY OR AN OFFER OR AGREEMENT TO ACCEPT MONEY. Moreover, a demand letter from an attorney MUST INCLUDE THE ATTORNEYS STATE BAR LICENSE NUMBER.
If you believe the attorney who provided you with this notice and prelitigation demand letter is not complying with state law, you may send a copy of the demand letter you received from the attorney to the State Bar of California by facsimile transmission to 1-415-538-2171, or by mail to the State Bar of California, 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
REDUCING YOUR DAMAGES. If you are a small business owner and correct all of the construction-related violations that are the basis of the complaint against you within 30 days of being served with the complaint, you may qualify for reduced damages if the matter results in a court judgment. If you believe you qualify for reduced damages, you may wish to consult an attorney to obtain legal advice, or contact the California Commission on Disability Access for additional information about the rights and obligations of business owners.
COMMERCIAL TENANT. If you are a commercial tenant, you may not be responsible for ensuring that some or all portions of the premises you lease for your business, including common areas such as parking lots, are accessible to the public because those areas may be the responsibility of your landlord. You may want to refer to your lease agreement and consult with an attorney or contact your landlord, to determine if your landlord is responsible under the terms of your lease for maintaining and improving some or all of the areas you lease to operate your business.
(B)On or before July 1, 2016, the Judicial Council shall update the advisory form that may be used by an attorney to comply with the requirements of subparagraph (A). The advisory form shall be in substantially the same format and include all of the text set forth in subparagraph (A). The advisory form shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the advisory form is available in additional languages, and the Judicial Council Internet Web site address where the different versions of the advisory form are located. The advisory form shall include Internet Web site information for the Division of the State Architect and the California Commission on Disability Access.
(2)An answer form developed by the Judicial Council, which allows a defendant to respond to the complaint in the event a complaint is filed.
(A)The answer form shall be written in plain language and allow the defendant to state any relevant information affecting the defendants liability or damages including, but not limited to, the following:
(i)Specific denials of the allegations in the complaint, including whether the plaintiff has demonstrated that he or she was denied full and equal access to the place of public accommodation on a particular occasion pursuant to Section 55.56.
(ii)Potential affirmative defenses available to the defendant, including:
(I)An assertion that the defendant qualifies for reduced damages pursuant to paragraph (1) or (2) of subdivision (f) of Section 55.56, and facts supporting that assertion.
(II)An assertion that the defendants landlord is responsible for ensuring that some or all of the property leased by the defendant, including the areas at issue in the complaint, are accessible to the public. The defendant shall provide facts supporting that assertion, and the name and contact information of the defendants landlord.
(III)Any other affirmative defense the defendant wishes to assert.
(iii)Whether the defendant made a written settlement offer that was rejected by the plaintiff, or met with the plaintiff in a good faith effort to negotiate a settlement of the complaint.
(iv)Any other information that the defendant believes is relevant to his or her potential liability or damages.
(B)The answer form shall provide instructions to a defendant who wishes to file the form as an answer to the complaint. The form shall also notify the defendant that he or she may use the completed form as an informal response to a demand letter or for settlement discussion purposes.
(C)On or before July 1, 2016, the Judicial Council shall adopt the answer form that may be used by an attorney to comply with the requirements of this paragraph, and shall post the answer form on the Judicial Council Internet web site.
(c)Subdivision (b) applies only to a demand letter or complaint made by an attorney. This section does not affect the right to file a civil complaint under any other law or regulation protecting the physical access rights of persons with disabilities. Additionally, this section does not require a party to provide or send a demand letter to another party before proceeding against that party with a civil complaint.
(d)This section does not apply to an action brought by the Attorney General or any district attorney, city attorney, or county counsel.
SEC. 4.Section 55.54 of the Civil Code is amended to read:55.54.(a)(1)An attorney who causes a summons and complaint to be served in an action that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the same time, cause to be served a copy of the application form specified in subdivision (c) and a copy of the following notice, including, until January 1, 2013, the bracketed text, to the defendant on separate papers that shall be served with the summons and complaint:
ADVISORY NOTICE TO DEFENDANT
YOU MAY BE ENTITLED TO ASK FOR A COURT STAY (AN ORDER TEMPORARILY STOPPING ANY LAWSUIT) AND EARLY EVALUATION CONFERENCE IN THIS LAWSUIT AND MAY BE ASSESSED REDUCED STATUTORY DAMAGES IF YOU MEET CERTAIN CONDITIONS.
If the construction-related accessibility claim pertains to a site that has a Certified Access Specialist (CASp) inspection report for that site, or to a site where new construction or improvement was approved after January 1, 2008, by the local building permit and inspection process, you may make an immediate request for a court stay and early evaluation conference in the construction-related accessibility claim by filing the attached application form with the court. You may be entitled to the court stay and early evaluation conference regarding the accessibility claim only if ALL of the statements in the application form applicable to you are true.
FURTHER, if you are a defendant described above (with a CASp inspection report or with new construction after January 1, 2008), and, to the best of your knowledge, there have been no modifications or alterations completed or commenced since the CASp report or building department approval of the new construction or improvement that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, your liability for minimum statutory damages may be reduced to $1,000 for each offense, unless the violation was intentional, and if all construction-related accessibility violations giving rise to the claim are corrected within 60 days of being served with this complaint.
IN ADDITION, if your business is a small business that, over the previous three years, or the existence of the business if less than three years, employs 25 or fewer employees on average over that time period and meets specified gross receipts criteria, you may also be entitled to the court stay and early evaluation conference conference, if the plaintiff in this case has filed more than 15 lawsuits that allege construction-related accessibility claims against places of public accommodation in the 12 months prior to the date of this lawsuit. If you are a small businesses that meets the employee and gross receipts criteria, you may also be entitled to a court stay and an early evaluation conference, and your minimum statutory damages for each claim may be reduced to $2,000 for each offense, unless the violation was intentional, and if all the alleged construction-related accessibility violations are corrected within 30 days of being served with the complaint.
If you plan to correct the violations giving rise to the claim, you should take pictures and measurements or similar action to document the condition of the physical barrier asserted to be the basis for a violation before undertaking any corrective action in case a court needs to see the condition of a barrier before it was corrected.
The court will schedule the conference to be held within 70 90 days after you file the attached application form.
[If you are not a defendant with a CASp inspection report, until a form is adopted by the Judicial Council, you may use the attached form if you modify the form and supplement it with your declaration stating any one of the following:
(1)Until January 1, 2018, that the sites new construction or improvement on or after January 1, 2008, and before January 1, 2016, was approved pursuant to the local building permit and inspection process; that, to the best of your knowledge, there have been no modifications or alterations completed or commenced since the building department approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(2)That the sites new construction or improvement passed inspection by a local building department inspector who is a certified access specialist; that, to the best of your knowledge, there have been no modifications or alterations completed or commenced since that inspection approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(3)That your business is a small business with 25 or fewer employees and meets the gross receipts criteria set out in Section 55.56 of the Civil Code, and that all violations giving rise to the claim have been corrected, or will be corrected within 30 days of being served with the complaint.]
The court will also issue an immediate stay of the proceedings unless the plaintiff has obtained a temporary restraining order in the construction-related accessibility claim. You may obtain a copy of the application form, filing instructions, and additional information about the stay and early evaluation conference through the Judicial Council Internet Web site at www.courts.ca.gov/selfhelp-start.htm.
You may file the application after you are served with a summons and complaint, but no later than your first court pleading or appearance in this case, which is due within 30 days after you receive the summons and complaint. If you do not file the application, you will still need to file your reply to the lawsuit within 30 days after you receive the summons and complaint to contest it. You may obtain more information about how to represent yourself and how to file a reply without hiring an attorney at www.courts.ca.gov/selfhelp-start.htm.
You may file the application without the assistance of an attorney, but it may be in your best interest to immediately seek the assistance of an attorney experienced in disability access laws when you receive a summons and complaint. You may make an offer to settle the case, and it may be in your interest to put that offer in writing so that it may be considered under Section 55.55 of the Civil Code.
(2)An attorney who files a Notice of Substitution of Counsel to appear as counsel for a plaintiff who, acting in propria persona, had previously filed a complaint in an action that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the same time, cause to be served a copy of the application form specified in subdivision (c) and a copy of the notice specified in paragraph (1) upon the defendant on separate pages that shall be attached to the Notice of Substitution of Counsel.
(b)(1)Notwithstanding any other law, upon being served with a summons and complaint asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, a qualified defendant, or other defendant as defined in paragraph (2), may file a request for a court stay and early evaluation conference in the proceedings of that claim prior to or simultaneous with that defendants responsive pleading or other initial appearance in the action that includes the claim. If that defendant filed a timely request for stay and early evaluation conference before a responsive pleading was due, the period for filing a responsive pleading shall be tolled until the stay is lifted. Any responsive pleading filed simultaneously with a request for stay and early evaluation conference may be amended without prejudice, and the period for filing that amendment shall be tolled until the stay is lifted.
(2)This subdivision shall also apply to a defendant if any of the following apply:
(A)Until January 1, 2018, the sites new construction or improvement on or after January 1, 2008, and before January 1, 2016, was approved pursuant to the local building permit and inspection process, and the defendant declares with the application that, to the best of the defendants knowledge, there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, and that all violations have been corrected, or will be corrected within 60 days of being served with the complaint.
(B)The sites new construction or improvement was approved by a local public building department inspector who is a certified access specialist, and the defendant declares with the application that, to the best of the defendants knowledge, there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim, and that all violations have been corrected, or will be corrected within 60 days of being served with the complaint.
(C)The defendant is a small business described in subdivision (f) of Section 55.56, and the defendant declares with the application that all violations have been corrected, or will be corrected within 30 days of being served with the complaint.
(D)The defendant is a small business, as described in subdivision (f) of Section 55.56, that has been served with a complaint filed by a high-frequency litigant, as defined in subdivision (b) of Section 425.55 of the Code of Civil Procedure, asserting a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55.
(3)Notwithstanding any other law, if the plaintiff had acted in propria persona in filing a complaint that includes a construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, a qualified defendant, or a defendant described by paragraph (2), who is served with a Notice of Substitution of Counsel shall have 30 days to file an application for a stay and an early evaluation conference. The application may be filed prior to or after the defendants filing of a responsive pleading or other initial appearance in the action that includes the claim, except that an application may not be filed in a claim in which an early evaluation conference or settlement conference has already been held on the claim.
(c)(1)An application for an early evaluation conference and stay by a qualified defendant shall include a signed declaration that states both of the following:
(A)The site identified in the complaint has been CASp-inspected or meets applicable standards, or is CASp determination pending or has been inspected by a CASp, and if the site is CASp-inspected or meets applicable standards, there have been no modifications completed or commenced since the date of inspection that may impact compliance with construction-related accessibility standards to the best of the defendants knowledge.
(B)An inspection report pertaining to the site has been issued by a CASp. The inspection report shall be provided to the court and the plaintiff at least 15 days prior to the court date set for the early evaluation conference.
(2)An application for an early evaluation conference and stay by a defendant described by subparagraph (A) of paragraph (2) of subdivision (b), which may be filed until January 1, 2018, shall include a signed declaration that states all of the following:
(A)The sites new construction or improvement was approved pursuant to the local building permit and inspection process on or after January 1, 2008, and before January 1, 2016.
(B)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(C)All construction-related violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served upon the defendant.
(3)An application for an early evaluation conference and stay by a defendant described in subparagraph (B) of paragraph (2) of subdivision (b) shall include a signed declaration that states all of the following:
(A)The sites new construction or improvement was approved by a local building department inspector who is a certified access specialist.
(B)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(C)All construction related violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served upon the defendant.
(4)An application for an early evaluation conference and stay by a defendant described by subparagraph (C) of paragraph (2) of subdivision (b) shall include the materials listed in paragraphs (5) and (6) of this subdivision, and shall include a signed declaration that states both of the following:
(A)The defendant is a small business that employs 25 or fewer employees and meets the gross receipts eligibility criteria provided in paragraph (2) of subdivision (f) of Section 55.56.
(B)All construction-related violations giving rise to the claim have been corrected, or will be corrected within 30 days of the complaint being served upon the defendant.
(5)An application for an early evaluation conference and stay by a small business defendant under paragraph (4) shall include evidence showing correction of all violations within 30 days of the service of the complaint and served upon the plaintiff with the reply unless the application is filed prior to completion of the corrections. In that event, the evidence shall be provided to the court and served upon the plaintiff within 10 days of the court order as provided in paragraph (4) of subdivision (d). This paragraph shall not be construed to extend the permissible time under subdivision (f) of Section 55.56 to make the corrections.
(6)An application for an early evaluation conference and stay by a small business defendant under paragraph (4) shall also include both of the following, which shall be confidential documents filed only with the court and not served upon or available to the plaintiff:
(A)Proof of the defendants number of employees, as shown by wage report forms filed with the Employment Development Department.
(B)Proof of the defendants average gross receipts for the previous three years, or for the existence of the business if less than three years, as shown by a federal or state tax document.
(7)An application for an early evaluation conference and stay by a defendant described by subparagraph (D) of paragraph (2) of subdivision (b) shall include a declaration that the defendant is a small business that employs 25 or fewer employees and meets the gross receipts eligibility criteria provided in paragraph (2) of subdivision (f) of Section 55.56 and shall also include both of the following, which shall be confidential documents filed only with the court and not served upon or available to the plaintiff:
(A)Proof of the defendants number of employees, as shown by wage report forms filed with the Employment Development Department.
(B)Proof of the defendants average gross receipts for the previous three years, or for the existence of the business if less than three years, as shown by a federal or state tax document.
(7)
(8)The following provisional request and notice forms may be used and filed by a qualified defendant until forms are adopted by the Judicial Council for those purposes pursuant to subdivision (l):
PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE INSERTED(8)
(9)The provisional forms and any replacement Judicial Council forms shall include the defendants declaration of proof of service of the application, the notice of the courts order, and the courts order pursuant to subdivision (d).
(d)Upon the filing of an application for stay and early evaluation conference by a qualified defendant, or a defendant described by paragraph (2) of subdivision (b), the court shall immediately issue an order that does all of the following:
(1)Grants a 90-day stay of the proceedings with respect to the construction-related accessibility claim, unless the plaintiff has obtained temporary injunctive relief that is still in place for the construction-related accessibility claim.
(2)Schedules a mandatory early evaluation conference for a date as soon as possible from the date of the order, but in no event later than 70 days after issuance of the order, and in no event earlier than 50 days after the filing of the request.
(3)Directs the parties, and any other person whose authority is required to negotiate and enter into settlement, to appear in person at the time set for the conference. Appearance by counsel shall not satisfy the requirement that the parties or those with negotiation and settlement authority personally appear, provided, however, that the court may allow a party who is unable to attend in person due to his or her disability to participate in the hearing by telephone or other alternative means or through a representative authorized to settle the case.
(4)(A)Directs the qualified defendant to file with the court and serve on the plaintiff a copy of any relevant CASp inspection report at least 15 days before the date of the conference. The CASp inspection report is confidential and is available only as set forth in paragraph (5) of this subdivision and in paragraph (4) of subdivision (e).
(B)Directs a defendant described by subparagraph (A) or (B) of paragraph (2) of subdivision (b) who has filed a declaration stating that the violation or violations have been corrected, or will be corrected within 60 days of service of the complaint to file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days after the completion of the corrections.
(C)Directs a defendant described by subparagraph (C) of paragraph (2) of subdivision (b) who has filed a declaration stating that the violation or violations have been corrected, or will be corrected within 30 days of service of the complaint to file with the court and serve on the plaintiff within 10 days after issuance of the court order evidence of correction of the violation or violations, if that evidence showing correction was not filed previously with the application and served on the plaintiff.
(5)Directs the parties that the CASp inspection report may be disclosed only to the court, the parties to the action, the parties attorneys, those individuals employed or retained by the attorneys to assist in the litigation, and insurance representatives or others involved in the evaluation and settlement of the case.
(6)If the defendant so requests, directs the parties that no later than 30 days after issuance of the court order the parties and their counsel, accompanied by their experts if the parties so elect, shall meet in person at the subject premises. If plaintiff alleges only programmatic or policy violations, the parties and their counsel may meet in person at any mutually agreeable location. They shall jointly inspect the portions of the subject premises, and shall review any programmatic or policy issues, that are claimed to constitute a violation of a construction-related accessibility standard.
(6)
(7)Directs the plaintiff to file with the court and serve on the defendant at least 15 days before the date of the conference a statement that includes, to the extent reasonably known, for use solely for the purpose of the early evaluation conference, all of the following:
(A)An itemized list of specific conditions on the subject premises that are the basis of the claimed violations of construction-related accessibility standards in the plaintiffs complaint.
(B)The amount of damages claimed.
(C)The amount of attorneys fees and costs incurred to date, if any, that are being claimed.
(D)Any demand for settlement of the case in its entirety.
(e)(1)A party failing to comply with any court order may be subject to court sanction at the courts discretion.
(2)(A)The court shall lift the stay when the defendant has failed to file and serve the CASp inspection report prior to the early evaluation conference and has failed also to produce the report at the time of the early evaluation conference, unless the defendant shows good cause for that failure.
(B)The court shall lift the stay when a defendant described by paragraph (2) of subdivision (b) has failed to file and serve the evidence showing correction of the violation or violations as required by law.
(3)The court may lift the stay at the conclusion of the early evaluation conference upon a showing of good cause by the plaintiff. Good cause may include the defendants failure to make reasonably timely progress toward completion of corrections noted by a CASp.
(4)The CASp inspection report filed and served pursuant to subdivision (d) shall remain confidential throughout the stay and shall continue to be confidential until the conclusion of the claim, whether by dismissal, settlement, or final judgment, unless there is a showing of good cause by any party. Good cause may include the defendants failure to make reasonably timely progress toward completion of corrections noted by a CASp. The confidentiality of the inspection report shall terminate upon the conclusion of the claim, unless the owner of the report obtains a court order pursuant to the California Rules of Court to seal the record.
(f)All discussions at the early evaluation conference shall be subject to Section 1152 of the Evidence Code. It is the intent of the Legislature that the purpose of the evaluation conference shall include, but not be limited to, evaluation of all of the following, as applicable:
(1)Whether the defendant is entitled to the 90-day stay for some or all of the identified issues in the case, as a qualified defendant.
(2)The current condition of the site and the status of any plan of corrections, including whether the qualified defendant has corrected or is willing to correct the alleged violations, and the timeline for doing so.
(3)Whether subdivision (f) of Section 55.56 may be applicable to the case, and whether all violations giving rise to the claim have been corrected within the specified time periods.
(4)Whether the case, including any claim for damages or injunctive relief, can be settled in whole or in part.
(5)Whether the parties should share other information that may facilitate early evaluation and resolution of the dispute.
(g)Nothing in this section precludes any party from making an offer to compromise pursuant to Section 998 of the Code of Civil Procedure.
(h)For a claim involving a qualified defendant, as provided in paragraph (1) of subdivision (b), the court may schedule additional conferences and may extend the 90-day stay for good cause shown, but not to exceed one additional 90-day extension.
(i)Early evaluation conferences shall be conducted by a superior court judge or commissioner, or a court early evaluation conference officer. A commissioner shall not be qualified to conduct early evaluation conferences pursuant to this subdivision unless he or she has received training regarding disability access requirements imposed by the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), state laws that govern access to public facilities, and federal and state regulations adopted pursuant to those laws. For purposes of this subdivision, a court early evaluation conference officer means an attorney employed by the court who has received training regarding disability access requirements imposed by the federal Americans with Disabilities Act of 1990, state laws that govern access to public facilities, and federal and state regulations adopted pursuant to those laws. Attorneys serving in this capacity may also be utilized by the court for other purposes not related to these proceedings.
(j)Nothing in this part shall be deemed to make any inspection report, opinion, statement, or other finding or conclusion of a CASp binding on the court, or to abrogate in any manner the ultimate authority of the court to make all appropriate findings of fact and law. The CASp inspection report and any opinion, statement, finding, or conclusion therein shall be given the weight the trier of fact finds that it deserves.
(k)Nothing in this part shall be construed to invalidate or limit any California construction-related accessibility standard that provides greater or equal protection for the rights of individuals with disabilities than is afforded by the federal Americans with Disabilities Act (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.) and the federal regulations adopted pursuant to that act.
(l)(1)The Judicial Council shall, by January 1, 2013, prepare and post on its Internet Web site instructions and a form for use by a qualified defendant, or other defendant described by paragraph (2) of subdivision (b), to file an application for stay and early evaluation conference as provided in subdivisions (b) and (c), a form for the courts notice of stay and early evaluation conference, and any other forms appropriate to implement the provisions relating to early evaluation conferences. Until those forms are adopted, the Judicial Council shall post on its Internet Web site the provisional forms set forth in subdivision (c).
(2)Until the adoption of the forms as provided in paragraph (1), the provisional application form may be used by a defendant described by paragraph (2) of subdivision (b).
(3)In lieu of the provisions specified in number 3 of page 1 of the application form set forth in paragraph (7) of subdivision (c), the application shall include one of the following declarations of the defendant as to the basis for the application, as follows:
(A)That all of the following apply to a defendant described by subparagraph (A) of paragraph (2) of subdivision (b):
(i)The sites new construction or improvement was approved pursuant to the local building permit and inspection process on or after January 1, 2008, and before January 1, 2016.
(ii)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(iii)All the violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(B)That all of the following apply to a defendant described by subparagraph (B) of paragraph (2) of subdivision (b):
(i)The sites new construction or improvement was approved by a local public building department inspector who is a certified access specialist.
(ii)To the best of the defendants knowledge there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to the plaintiffs claim.
(iii)All the violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served.
(C)That both of the following apply to a defendant described by subparagraph (C) of paragraph (2) of subdivision (b):
(i)The defendant is a small business described in paragraph (2) of subdivision (f) of Section 55.56.
(ii)The violation or violations giving rise to the claim have been corrected, or will be corrected within 30 days of the complaint being served.
(4)In lieu of the provision specified in number 4(c) of page 1 of the application form set forth in paragraph (7) of subdivision (c), the application shall include a request that the court order the defendant to do either of the following:
(A)For a defendant who has filed a declaration stating that all violations have been corrected, or will be corrected within 60 days of service of the complaint, file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days of the completion of the corrections.
(B)For a defendant who is a small business that has filed a declaration stating that all the violations have been corrected, or will be corrected within 30 days of the service of the complaint, file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days after issuance of the court order, if that evidence showing correction was not filed previously with the application and served on the plaintiff.
(5)The Judicial Council shall also prepare and post on its Internet Web site instructions and cover pages to assist plaintiffs and defendants, respectively, to comply with their filing responsibilities under subdivision (d). The cover pages shall also provide for the partys declaration of proof of service of the pertinent document served under the court order.
(m)The stay provisions shall not apply to any construction-related accessibility claim in which the plaintiff has been granted temporary injunctive relief that remains in place.
(n)This section shall not apply to any action brought by the Attorney General, or by any district attorney, city attorney, or county counsel.
(o)The amendments to this section made by Senate Bill 1186 of the 201112 Regular Session of the Legislature shall apply only to claims filed on or after the operative date of that act. Nothing in this part is intended to affect any complaint filed before that date.
(p)Nothing in this part is intended to affect existing law regarding class action requirements.
SEC. 5.Section 425.50 of the Code of Civil Procedure is amended to read:425.50.(a)An allegation of a construction-related accessibility claim in a complaint, as defined in subdivision (a) of Section 55.52 of the Civil Code, shall state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim, including all of the following:
(1)A plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred, with sufficient information about the location of the alleged barrier to enable a reasonable person to identify the access barrier.
(2)The way in which the barrier denied the individual full and equal use or access, or in which it deterred the individual, on each particular occasion.
(3)The date or dates of each particular occasion on which the claimant encountered the specific access barrier, or on which he or she was deterred.
(4)(A)Except in complaints that allege physical injury or damage to property, a complaint filed by or on behalf of a high-frequency litigant shall also state all of the following:
(i)That the complaint is filed by, or on behalf of, a high-frequency litigant.
(ii)The number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint.
(iii)The reason the individual was in the geographic area of the defendants business.
(iv)The reason why the individual desired to access the defendants business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose.
(B)As used in this section high-frequency litigant has the same meaning as set forth in subdivision (b) of Section 425.55.
(b)A complaint alleging a construction-related accessibility claim, as those terms are defined in subdivision (a) of Section 55.3 of the Civil Code, shall be verified by the plaintiff. A complaint filed without verification shall be subject to a motion to strike.
(c)A complaint alleging a construction-related accessibility claim shall be signed by at least one attorney of record in the attorneys individual name, or, if the party is not represented by an attorney, shall be signed by the party. By signing the complaint, the attorney or unrepresented party is certifying that, to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
(1)It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(2)The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
(3)The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4)The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(d)A court may, after notice and a reasonable opportunity to respond, determine whether subdivision (c) has been violated and, if so, impose sanctions as provided in Section 128.7 for violations of subdivision (b) Section 128.7.
(c)
(e)Nothing in this section shall limit the right of a plaintiff to amend a complaint under Section 472, or with leave of the court under Section 473. However, an amended pleading alleging a construction-related accessibility claim shall be pled as required by subdivision (a).
(d)
(f)This section shall become operative on January 1, 2013.
SEC. 6.Section 425.55 is added to the Code of Civil Procedure, to read425.55.(a)The Legislature finds and declares all of the following:
(1)Protection of the civil rights of persons with disabilities is of the utmost importance to this state, and private enforcement is the essential means of achieving that goal, as the law has been designed.
(2)In recent years, a very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year, that are filed frequently against small businesses on the basis of boilerplate complaints.
(3)Therefore, given these special and unique circumstances, the provisions of this section are warranted for this limited group of plaintiffs.
(b)For the purposes of this article, high-frequency litigant means a person who utilizes court resources in actions arising from alleged construction-related access violations at such a high level that it is appropriate that additional safeguards apply so as to ensure that the claims are warranted and appropriate. A high-frequency litigant means plaintiff who has filed 15 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.
SEC. 7.Section 425.60 is added to the Code of Civil Procedure, to read:425.60.(a)Any written settlement agreement regarding a construction-related accessibility claim shall be filed by the plaintiff with the California Commission on Disability Access within 30 days of the execution of the agreement.
(b)Except as set forth in subdivision (e), a high frequency litigant shall seek and obtain approval of the court with respect to the settlement of a construction-related accessibility claim against a small business as defined by subdivision (f) of section 55.56 to determine that the proposed settlement is lawful, reasonable, and non-collusive.
(c)A party requesting court review of a settlement shall do so by means of a motion for a settlement conference, which shall be scheduled no later than 30 court days after the filing of the motion. If the matter is not scheduled to be heard within 30 court days, the settlement shall be deemed approved. A party requesting a court review of the settlement shall attach a copy of the settlement agreement or a description its material terms in the motion.
(d)If the court does not approve the settlement, it shall state the reasons for decision in a written order and the litigation shall proceed. If the hearing occurs prior to the expiration of a stay of the proceedings pursuant to any provision of law, including, but not limited to, Section 55.54, the court shall terminate the stay on the date of the settlement conference.
(e)This section shall not apply in any of the following circumstances:
(1)The settlement agreement provides for the removal or remediation of some or all of the violations described in the complaint by a specified date, unless removal or remediation of the violations cannot be accomplished because of the closure or elimination of the place of public accommodation or a feature or element of the place of public accommodation or because the public accommodation was temporary or ephemeral in nature, such as an irregularly held festival, fair, performance, or athletic games.
(2)The complaint alleges that the plaintiff suffered physical injuries or damage to property.
(f)Nothing set forth in this section is intended to affect the law of the interpretation of contracts. There is a presumption that settlement agreements shall be enforceable. It shall be deemed bad faith for any party to negotiate a settlement agreement and then dispute the terms thereof at any hearing held under this section absent good cause shown for a change in position. If the defendant seeks to contest a settlement to which the defendant has previously agreed, he or she shall do so by filing a notice of his or her intent to dispute the settlement which shall be accompanied by a declaration setting forth all of the reasons why the party believes that circumstances have changed and that the settlement is no longer just, fair, or enforceable. This notice shall be filed with the court no later than 15 days before the date of the hearing scheduled pursuant to subdivision (c) and shall be served on the plaintiff concurrently with filing.
(g)An attorney who violates this section or Section 425.55, shall be subject to discipline by the State Bar.
SEC. 8.Section 19953 of the Health and Safety Code is amended to read:19953.Any person who is aggrieved or potentially aggrieved by a violation of this part, Chapter 7 (commencing with Section 4450) of Division 5 of Title 1 of the Government Code, or Part 5.5 (commencing with Section 19955) of Division 13 of the Health and Safety Code may bring an action to enjoin the violation. The prevailing party in the action shall be entitled to recover reasonable attorneys fees. The court shall award costs and reasonable attorneys fees to a prevailing plaintiff in an action filed pursuant to this section. If the court finds that the plaintiffs case is clearly frivolous, it shall award court costs and reasonable attorneys fees to the defendant.
SEC. 9.This act shall become operative only if Senate Bill 251 of the 2015-16 Legislative Session, relating to disability access, is enacted on or before January 1, 2016.
SEC. 10.The Legislature finds and declares that Section 4 of this act limits the publics right of access to public documents within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest and the need for protecting that interest:
(a)The interest protected by this limitation is the privacy rights of litigants.
(b)The need for protecting those interests is to preclude the chilling effect on litigation if public disclosure were required.
SEC. 11.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)For purposes of this section, the following apply:
(1)Complaint means a civil complaint that is filed or is to be filed with a court and is sent to or served upon a defendant on the basis of one or more construction-related accessibility claims, as defined in this section.
(2)Construction-related accessibility claim means any claim of a violation of any construction-related accessibility standard, as defined by paragraph (6) of subdivision (a) of Section 55.52, with respect to a place of public accommodation. Construction-related accessibility claim does not include a claim of interference with housing within the meaning of paragraph (2) of subdivision (b) of Section 54.1, or any claim of interference caused by something other than the construction-related accessibility condition of the property, including, but not limited to, the conduct of any person.
(3)Demand for money means a prelitigation written document or oral statement that is provided or issued to a building owner or tenant, or the owners or tenants agent or employee, that does all of the following:
(A)Alleges that the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2).
(B)Contains or makes a request or demand for money or an offer or agreement to accept money.
(C)Is provided or issued whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(4)Demand letter means a prelitigation written document that is provided to a building owner or tenant, or the owners or tenants agent or employee, that alleges the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2), and is provided whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(b)An attorney shall provide the following items with each demand letter or complaint sent to or served upon a defendant or potential defendant alleging a construction-related accessibility claim:
(1)A written advisory on the form described in subparagraph (B), or, until that form is available, on a separate page or pages that are clearly distinguishable from the demand letter or complaint. The advisory shall not be required in subsequent communications following the initial demand letter or initial complaint unless a new construction-related accessibility claim is asserted in the subsequent demand letter or amended complaint.
(A)The advisory shall state as follows:
STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY INFORMATION FOR BUILDING OWNERS AND TENANTS
This information is available in English, Spanish, Chinese, Vietnamese, and Korean through the Judicial Council of California. Persons with visual impairments can get assistance in viewing this form through the Judicial Council Internet Web site at www.courts.ca.gov.
California law requires that you receive this information because the demand letter or court complaint you received with this document claims that your building or property does not comply with one or more existing construction-related accessibility laws or regulations protecting the civil rights of persons with disabilities to access public places.
YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability access laws is a serious and significant responsibility that applies to all California building owners and tenants with buildings open for business to the public. You may obtain information about your legal obligations and how to comply with disability access laws through the Division of the State Architect at www.dgs.ca.gov. Information is also available from the California Commission on Disability Access at www.ccda.ca.gov/guide.htm.
YOU HAVE IMPORTANT LEGAL RIGHTS. The allegations made in the accompanying demand letter or court complaint do not mean that you are required to pay any money unless and until a court finds you liable. Moreover, RECEIPT OF A DEMAND LETTER OR COURT COMPLAINT AND THIS ADVISORY DOES NOT NECESSARILY MEAN YOU WILL BE FOUND LIABLE FOR ANYTHING. You will have the right if you are later sued to fully present your explanation why you believe you have not in fact violated disability access laws or have corrected the violation or violations giving rise to the claim.
You have the right to seek assistance or advice about this demand letter or court complaint from any person of your choice. If you have insurance, you may also wish to contact your insurance provider. Your best interest may be served by seeking legal advice or representation from an attorney, but you may also represent yourself and file the necessary court papers to protect your interests if you are served with a court complaint. If you have hired an attorney to represent you, you should immediately notify your attorney.
If a court complaint has been served on you, you will get a separate advisory notice with the complaint advising you of special options and procedures available to you under certain conditions.
ADDITIONAL THINGS YOU SHOULD KNOW:
ATTORNEY MISCONDUCT. Except for limited circumstances, state law generally requires that a prelitigation demand letter from an attorney MAY NOT MAKE A REQUEST OR DEMAND FOR MONEY OR AN OFFER OR AGREEMENT TO ACCEPT MONEY. Moreover, a demand letter from an attorney MUST INCLUDE THE ATTORNEYS STATE BAR LICENSE NUMBER.
If you believe the attorney who provided you with this notice and prelitigation demand letter is not complying with state law, you may send a copy of the demand letter you received from the attorney to the State Bar of California by facsimile transmission to 1-415-538-2171, or by mail to the State Bar of California, 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
REDUCING YOUR DAMAGES. If you are a small business owner and correct all of the construction-related violations that are the basis of the complaint against you within 30 days of being served with the complaint, you may qualify for reduced damages if the matter results in a court judgment. If you believe you qualify for reduced damages, you may wish to consult an attorney to obtain legal advice, or contact the California Commission on Disability Access for additional information about the rights and obligations of business owners.
COMMERCIAL TENANT. If you are a commercial tenant, you may not be responsible for ensuring that some or all portions of the premises you lease for your business, including common areas such as parking lots, are accessible to the public because those areas may be the responsibility of your landlord. You may want to refer to your lease agreement and consult with an attorney or contact your landlord, to determine if your landlord is responsible under the terms of your lease for maintaining and improving some or all of the areas you lease to operate your business.
(B)On or before July 1, 2016, the Judicial Council shall update the advisory form that may be used by an attorney to comply with the requirements of subparagraph (A). The advisory form shall be in substantially the same format and include all of the text set forth in subparagraph (A). The advisory form shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the advisory form is available in additional languages, and the Judicial Council Internet Web site address where the different versions of the advisory form are located. The advisory form shall include Internet Web site information for the Division of the State Architect and the California Commission on Disability Access.
(2)An answer form developed by the Judicial Council, which allows a defendant to respond to the complaint in the event a complaint is filed.
(A)The answer form shall be written in plain language and allow the defendant to state any relevant information affecting the defendants liability or damages including, but not limited to, the following:
(i)Specific denials of the allegations in the complaint, including whether the plaintiff has demonstrated that he or she was denied full and equal access to the place of public accommodation on a particular occasion pursuant to Section 55.56.
(ii)Potential affirmative defenses available to the defendant, including:
(I)An assertion that the defendant qualifies for reduced damages pursuant to paragraph (1) or (2) of subdivision (f) of Section 55.56, and facts supporting that assertion.
(II)An assertion that the defendants landlord is responsible for ensuring that some or all of the property leased by the defendant, including the areas at issue in the complaint, are accessible to the public. The defendant shall provide facts supporting that assertion, and the name and contact information of the defendants landlord.
(III)Any other affirmative defense the defendant wishes to assert.
(iii)Whether the defendant made a written settlement offer that was rejected by the plaintiff, or met with the plaintiff in a good faith effort to negotiate a settlement of the complaint.
(iv)Any other information that the defendant believes is relevant to his or her potential liability or damages.
(B)The answer form shall provide instructions to a defendant who wishes to file the form as an answer to the complaint. The form shall also notify the defendant that he or she may use the completed form as an informal response to a demand letter or for settlement discussion purposes.
(C)On or before July 1, 2016, the Judicial Council shall adopt the answer form that may be used by an attorney to comply with the requirements of this paragraph, and shall post the answer form on the Judicial Council Internet web site.
(c)Subdivision (b) applies only to a demand letter or complaint made by an attorney. This section does not affect the right to file a civil complaint under any other law or regulation protecting the physical access rights of persons with disabilities. Additionally, this section does not require a party to provide or send a demand letter to another party before proceeding against that party with a civil complaint.
(d)This section does not apply to an action brought by the Attorney General, or by General or any district attorney, city attorney, or county counsel.
(a)For purposes of this section, the following shall apply:
(1)Complaint means a civil complaint that is filed or is to be filed with a court and is sent to or served upon a defendant on the basis of one or more construction-related accessibility claims, as defined in this section.
(2)Construction-related accessibility claim means any claim of a violation of any construction-related accessibility standard, as defined by paragraph (6) of subdivision (a) of Section 55.52, with respect to a place of public accommodation. Construction-related accessibility claim does not include a claim of interference with housing within the meaning of paragraph (2) of subdivision (b) of Section 54.1, or any claim of interference caused by something other than the construction-related accessibility condition of the property, including, but not limited to, the conduct of any person.
(3)Demand for money means a prelitigation written document or oral statement that is provided or issued to a building owner or tenant, or the owners or tenants agent or employee, that does all of the following:
(A)Alleges that the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2).
(B)Contains or makes a request or demand for money or an offer or agreement to accept money.
(C)Is provided or issued whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(4)Demand letter means a prelitigation written document that is provided to a building owner or tenant, or the owners or tenants agent or employee, that alleges the site is in violation of one or more construction-related accessibility standards, as defined in paragraph (6) of subdivision (a) of Section 55.52, or alleges one or more construction-related accessibility claims, as defined in paragraph (2), and is provided whether or not the attorney intends to file a complaint, or eventually files a complaint, in state or federal court.
(b)An attorney shall provide a the following items with each demand letter or complaint sent to or served upon a defendant or potential defendant alleging a construction-related accessibility claim: written
(1)A written advisory on the form described in subdivision (c), subparagraph (B), or, until that form is available, on a separate page or pages that are clearly distinguishable from the demand letter or complaint, with each demand letter or complaint sent to or served upon a defendant or potential defendant. complaint. The advisory shall not be required in subsequent communications following the initial demand letter or initial complaint unless a new construction-related accessibility claim is asserted in the subsequent demand letter or amended complaint. The
(A)The advisory shall state as follows:
STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY INFORMATION FOR BUILDING OWNERS AND TENANTS
This information is available in English, Spanish, Chinese, Vietnamese, and Korean through the Judicial Council of California. Persons with visual impairments can get assistance in viewing this form through the Judicial Council Internet Web site at www.courts.ca.gov.
California law requires that you receive this information because the demand letter or court complaint you received with this document claims that your building or property does not comply with one or more existing construction-related accessibility laws or regulations protecting the civil rights of persons with disabilities to access public places.
YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability access laws is a serious and significant responsibility that applies to all California building owners and tenants with buildings open for business to the public. You may obtain information about your legal obligations and how to comply with disability access laws through the Division of the State Architect at www.dgs.ca.gov. Information is also available from the California Commission on Disability Access at www.ccda.ca.gov/guide.htm.
YOU HAVE IMPORTANT LEGAL RIGHTS. The allegations made in the accompanying demand letter or court complaint do not mean that you are required to pay any money unless and until a court finds you liable. Moreover, RECEIPT OF A DEMAND LETTER OR COURT COMPLAINT AND THIS ADVISORY DOES NOT NECESSARILY MEAN YOU WILL BE FOUND LIABLE FOR ANYTHING. You will have the right if you are later sued to fully present your explanation why you believe you have not in fact violated disability access laws or have corrected the violation or violations giving rise to the claim.
You have the right to seek assistance or advice about this demand letter or court complaint from any person of your choice. If you have insurance, you may also wish to contact your insurance provider. Your best interest may be served by seeking legal advice or representation from an attorney, but you may also represent yourself and file the necessary court papers to protect your interests if you are served with a court complaint. If you have hired an attorney to represent you, you should immediately notify your attorney.
If a court complaint has been served on you, you will get a separate advisory notice with the complaint advising you of special options and procedures available to you under certain conditions.
ADDITIONAL THINGS YOU SHOULD KNOW: If
ATTORNEY MISCONDUCT. Except for limited circumstances, state law generally requires that a prelitigation demand letter from an attorney the document accompanying this notice is a demand letter from a lawyer and not a formal court complaint, the lawyer is generally required by law to also provide a copy of it to the State Bar of California, until January 1, 2016, in order that the State Bar may determine whether the demand letter complies with legal requirements, INCLUDING THAT THE DEMAND LETTER MAY NOT MAKE A REQUEST OR DEMAND FOR MONEY OR AN OFFER OR AGREEMENT TO ACCEPT MONEY. Any Moreover, a demand letter or court complaint must list the lawyers State Bar license number on the document. from an attorney MUST INCLUDE THE ATTORNEYS STATE BAR LICENSE NUMBER.
If you believe the attorney who provided you with this notice and prelitigation demand letter is not complying with state law, you may send a copy of the demand letter you received from the attorney to the State Bar of California by facsimile transmission to 1-415-538-2171, or by mail to the State Bar of California, 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
You are encouraged, but are not required, to provide the State Bar with a copy of the demand letter so the State Bar is aware that you received this demand letter and may determine whether it is in compliance with specified legal requirements. A copy of the letter can be sent to the State Bar by facsimile transmission to 1-415-538-2171, or by mail to the State Bar of California, 180 Howard Street, San Francisco, CA, 94105, Attention: Professional Competence.
REDUCING YOUR DAMAGES. If you are a small business owner and correct all of the construction-related violations that are the basis of the complaint against you within 30 days of being served with the complaint, you may qualify for reduced damages if the matter results in a court judgment. If you believe you qualify for reduced damages, you may wish to consult an attorney to obtain legal advice, or contact the California Commission on Disability Access for additional information about the rights and obligations of business owners.
COMMERCIAL TENANT. If you are a commercial tenant, you may not be responsible for ensuring that some or all portions of the premises you lease for your business, including common areas such as parking lots, are accessible to the public because those areas may be the responsibility of your landlord. You may want to refer to your lease agreement and consult with an attorney or contact your landlord, to determine if your landlord is responsible under the terms of your lease for maintaining and improving some or all of the areas you lease to operate your business.
(c)
(B)On or before July 1, 2013, 2016, the Judicial Council shall update the advisory form that may be used by attorneys an attorney to comply with the requirements of subdivision (b). subparagraph (A). The advisory form shall be in substantially the same format and include all of the text set forth in subdivision (b). subparagraph (A). The advisory form shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the advisory form is available in additional languages, and the Judicial Council Internet Web site address where the different versions of the advisory form may be are located. The advisory form shall include Internet Web site information for the Division of the State Architect and the California Commission on Disability Access.
(2)An answer form developed by the Judicial Council, which allows a defendant to respond to the complaint in the event a complaint is filed.
(A)The answer form shall be written in plain language and allow the defendant to state any relevant information affecting the defendants liability or damages including, but not limited to, the following:
(i)Specific denials of the allegations in the complaint, including whether the plaintiff has demonstrated that he or she was denied full and equal access to the place of public accommodation on a particular occasion pursuant to Section 55.56.
(ii)Potential affirmative defenses available to the defendant, including:
(I)An assertion that the defendant qualifies for reduced damages pursuant to paragraph (1) or (2) of subdivision (f) of Section 55.56, and facts supporting that assertion.
(II)An assertion that the defendants landlord is responsible for ensuring that some or all of the property leased by the defendant, including the areas at issue in the complaint, are accessible to the public. The defendant shall provide facts supporting that assertion, and the name and contact information of the defendants landlord.
(III)Any other affirmative defense the defendant wishes to assert.
(iii)Whether the defendant made a written settlement offer that was rejected by the plaintiff, or met with the plaintiff in a good faith effort to negotiate a settlement of the complaint.
(iv)Any other information that the defendant believes is relevant to his or her potential liability or damages.
(B)The answer form shall provide instructions to a defendant who wishes to file the form as an answer to the complaint. The form shall also notify the defendant that he or she may use the completed form as an informal response to a demand letter or for settlement discussion purposes.
(C)On or before July 1, 2016, the Judicial Council shall adopt the answer form that may be used by an attorney to comply with the requirements of this paragraph, and shall post the answer form on the Judicial Council Internet web site.
(d)
(c)Subdivision (b) shall apply applies only to a demand letter or complaint made by an attorney. Nothing in this This section is intended to does not affect the right to file a civil complaint under any other law or regulation protecting the physical access rights of persons with disabilities. Additionally, nothing in this section requires does not require a party to provide or send a demand letter to another party before proceeding against that party with a civil complaint.
(e)
(d)This section shall does not apply to any an action brought by the Attorney General, or by any district attorney, city attorney, or county counsel.
SECTION 1.Section 17 of the Code of Civil Procedure is amended to read:17.(a)Words used in this code in the present tense include the future as well as the present. Words used in the masculine gender include the feminine and neuter. The singular number includes the plural and the plural number includes the singular.
(b)As used in this code, the following words have the following meanings, unless otherwise apparent from the context:
(1)Affinity, when applied to the marriage relation, signifies the connection existing in consequence of marriage between each of the married persons and the blood relatives of the other.
(2)County includes city and county.
(3)Month means a calendar month, unless otherwise expressed.
(4)Oath includes an affirmation or declaration.
(A)Depose includes any written statement made under oath or affirmation.
(B)Testify includes any mode of oral statement made under oath.
(5)Person includes a corporation as well as a natural person.
(6)Process means a writ or summons issued in the course of a judicial proceeding.
(7)Property includes both personal and real property.
(A)Personal property includes money, goods, chattels, things in action, and evidences of debt.
(B)Real property is coextensive with lands, tenements, and hereditaments.
(8)Section means to a section of this code, unless some other code or statute is expressly mentioned.
(9)Sheriff includes marshal.
(10)Signature is synonymous with subscription, and includes both of the following:
(A)An electronic signature, which is an electronic image or symbol of a persons signature that is attached to, or logically associated with, a document and executed or adopted by the person with an intent to sign the document.
(B)A mark of a persons name, if the person cannot write, with his or her name being written near it by a person who writes his or her own name as a witness. In order that a mark may be acknowledged or serve as the signature to any sworn statement, it shall be witnessed by two persons who shall subscribe their own names as witnesses thereto.
(11)State, when applied to the different parts of the United States, includes the District of Columbia and the territories of the United States.
(12)United States may include the District of Columbia and the territories of the United States.
(13)Will includes codicil.
(14)Writ means an order or precept in writing, issued in the name of the people or of a court or judicial officer.
(15)Writing includes printing and typewriting.
SEC. 2.Section 581d of the Code of Civil Procedure is amended to read:581d.(a)A written dismissal of an action shall be entered in the clerks register and is effective for all purposes when so entered.
(b)A dismissal ordered by the court shall be in the form of a written order signed by the court and filed in the action, and, once filed, shall constitute a judgment, which is effective for all purposes. An electronic signature, as defined in subdivision (b) of Section 17, of the court shall be effective as an original signature. The clerk shall note judgments in the register of actions in the case.
SEC. 3.Section 582 of the Code of Civil Procedure is amended to read:582.In all other cases, a judgment shall be rendered on the merits. The judgment shall be signed by the court. An electronic signature, as defined in subdivision (b) of Section 17, of the court shall be effective as an original signature.
SEC. 4.Section 1003 of the Code of Civil Procedure is amended to read:1003.(a)Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.
(b)If any provision of this code requires the court to sign an order, an electronic signature, as defined in subdivision (b) of Section 17, of the court shall be as effective as an original signature.
(a)Words used in this code in the present tense include the future as well as the present; words present. Words used in the masculine gender include the feminine and neuter; the neuter. The singular number includes the plural and the plural number includes the singular; the word person includes a corporation as well as a natural person; the word county includes city and county; writing includes printing and typewriting; oath includes affirmation or declaration; and every mode of oral statement, under oath or affirmation, is embraced by the term testify, and every written one in the term depose; signature or subscription includes mark, when the person cannot write, his or her name being written near it by a person who writes his or her own name as a witness; provided, that when a signature is by mark it must, in order that the same may be acknowledged or may serve as the signature to any sworn statement, be witnessed by two persons who must subscribe their own names as witness thereto. singular.
(b)The following words have in this code the signification attached to them in this section, unless otherwise apparent from the context:
(1)The word property includes both real and personal property.
(2)The words real property are coextensive with lands, tenements, and hereditaments.
(3)The words personal property include money, goods, chattels, things in action, and evidences of debt.
(4)The word month means a calendar month, unless otherwise expressed.
(5)The word will includes codicil.
(6)The word writ signifies an order or precept in writing, issued in the name of the people, or of a court or judicial officer, and the word process signifies a writ or summons issued in the course of judicial proceedings.
(7)The word state, when applied to the different parts of the United States, includes the District of Columbia and the territories, and the words United States may include the district and territories.
(8)The word section, whenever hereinafter employed, refers to a section of this code, unless some other code or statute is expressly mentioned.
(9)The word affinity, when applied to the marriage relation, signifies the connection existing in consequence of marriage, between each of the married persons and the blood relatives of the other.
(10)The word sheriff shall include marshal.
(b)As used in this code, the following words have the following meanings, unless otherwise apparent from the context:
(1)Affinity, when applied to the marriage relation, signifies the connection existing in consequence of marriage between each of the married persons and the blood relatives of the other.
(2)County includes city and county.
(3)Month means a calendar month, unless otherwise expressed.
(4)Oath includes an affirmation or declaration.
(A)Depose includes any written statement made under oath or affirmation.
(B)Testify includes any mode of oral statement made under oath.
(5)Person includes a corporation as well as a natural person.
(6)Process means a writ or summons issued in the course of a judicial proceeding.
(7)Property includes both personal and real property.
(A)Personal property includes money, goods, chattels, things in action, and evidences of debt.
(B)Real property is coextensive with lands, tenements, and hereditaments.
(8)Section means to a section of this code, unless some other code or statute is expressly mentioned.
(9)Sheriff includes marshal.
(10)Signature is synonymous with subscription, and includes both of the following:
(A)An electronic signature, which is an electronic image or symbol of a persons signature that is attached to, or logically associated with, a document and executed or adopted by the person with an intent to sign the document.
(B)A mark of a persons name, if the person cannot write, with his or her name being written near it by a person who writes his or her own name as a witness. In order that a mark may be acknowledged or serve as the signature to any sworn statement, it shall be witnessed by two persons who shall subscribe their own names as witnesses thereto.
(11)State, when applied to the different parts of the United States, includes the District of Columbia and the territories of the United States.
(12)United States may include the District of Columbia and the territories of the United States.
(13)Will includes codicil.
(14)Writ means an order or precept in writing, issued in the name of the people or of a court or judicial officer.
(15)Writing includes printing and typewriting.
SEC. 2.Section 581d of the Code of Civil Procedure is amended to read:581d.A (a)A written dismissal of an action shall be entered in the clerks register and is effective for all purposes when so entered.
All dismissals
(b)A dismissal ordered by the court shall be in the form of a written order signed by the court and filed in the action, and those orders when so filed, once filed, shall constitute a judgments and be judgment, which is effective for all purposes, and the purposes. An electronic signature, as defined in subdivision (b) of Section 17, of the court shall be effective as an original signature. The clerk shall note those judgments in the register of actions in the case.
SEC. 3.Section 582 of the Code of Civil Procedure is amended to read:582.In all other cases, a judgment shall be rendered on the merits. The judgment shall be signed by the court. An electronic signature, as defined in subdivision (b) of Section 17, of the court shall be effective as an original signature.
SEC. 4.Section 1003 of the Code of Civil Procedure is amended to read:1003.(a)Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.
(b)If any provision of this code requires the court to sign an order, an electronic signature, as defined in subdivision (b) of Section 17, of the court shall be as effective as an original signature.
|
Date
|
Status
|
|---|---|
| Sep 10, 2015 | In Assembly. Concurrence in Senate amendments pending. |
| Aug 25, 2015 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 5. Noes 1.) (August 25). Re-referred to Com. on APPR. |
| Aug 27, 2015 | From committee: Do pass. (Ayes 5. Noes 2.) (August 27). |
| Aug 27, 2015 | In committee: Referred to suspense file. |
| Aug 31, 2015 | Read second time. Ordered to third reading. |
| Sep 3, 2015 | Read third time and amended. Ordered to second reading. |
| Sep 4, 2015 | Read second time. Ordered to third reading. |
| Sep 4, 2015 | Read third time and amended. Ordered to second reading. |
| Sep 8, 2015 | Read second time. Ordered to third reading. |
| Aug 18, 2015 | Measure version as amended on August 17 corrected. |
| Sep 10, 2015 | Read third time. Urgency clause adopted. Passed. Ordered to the Assembly. |
| Sep 10, 2015 | Read third time. Urgency clause adopted. Passed. Ordered to the Assembly. (Ayes 38. Noes 0. Page 2692.). |
| Sep 11, 2015 | Urgency clause adopted. Senate amendments concurred in. To Engrossing and Enrolling. |
| Sep 11, 2015 | Urgency clause adopted. Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 78. Noes 0. Page 3155.). |
| Sep 11, 2015 | Urgency clause adopted. Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 78. Noes 0.). |
| Sep 23, 2015 | Enrolled and presented to the Governor at 4 p.m. |
| Oct 10, 2015 | Approved by the Governor. |
| Oct 10, 2015 | Chaptered by Secretary of State - Chapter 755, Statutes of 2015. |
| May 28, 2015 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Mar 11, 2015 | From printer. May be heard in committee April 10. |
| Mar 26, 2015 | Referred to Com. on JUD. |
| May 6, 2015 | From committee chair, with author's amendments: Amend, and re-refer to Com. on JUD. Read second time and amended. |
| May 7, 2015 | Re-referred to Com. on JUD. |
| May 12, 2015 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 10. Noes 0.) (May 12). Re-referred to Com. on APPR. |
| May 20, 2015 | From committee: Amend, and do pass as amended. To Consent Calendar. (Ayes 15. Noes 0.) (May 20). |
| May 21, 2015 | Read second time and amended. Ordered returned to second reading. |
| May 22, 2015 | Read second time. Ordered to Consent Calendar. |
| Mar 10, 2015 | Read first time. To print. |
| May 28, 2015 | Read third time. Passed. Ordered to the Senate. (Ayes 76. Noes 0. Page 1637.) |
| May 28, 2015 | Read third time. Passed. Ordered to the Senate. (Ayes 76. Noes 0.) |
| Jun 11, 2015 | Referred to Com. on JUD. |
| Jul 2, 2015 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on JUD. |
| Jul 9, 2015 | In committee: Hearing postponed by committee. |
| Jul 16, 2015 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on JUD. |
| Aug 17, 2015 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on JUD. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 11, 2015 | AB 1521 JUD. Concurrence - Urgency Added By STONE | Assembly Floor |
Passed |
|
| Sep 10, 2015 | Assembly 3rd Reading AB1521 Committee On JUD. (Stone) By Roth Urgency Clause | Senate Floor |
Passed |
|
| Aug 27, 2015 | Do pass | Senate Standing Committee on Appropriations |
Passed |
|
| Aug 27, 2015 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Aug 25, 2015 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Judiciary |
Passed |
|
| May 28, 2015 | AB 1521 JUD. Consent Calendar Second Day By STONE | Assembly Floor |
Passed |
|
| May 20, 2015 | Do pass as amended. To Consent Calendar. | Assembly Standing Committee on Appropriations |
Passed |
|
| May 12, 2015 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Judiciary |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| American Civil Liberties Union of California | ** Against | Sep 10, 2015 |
| Building Owners and Managers Association of California | ** Support | Sep 10, 2015 |
| California Association For Local Economic Development | ** Support | Sep 10, 2015 |
| California Building Industry Association | ** Against | Sep 10, 2015 |
| California Business Property Association | ** Support | Sep 10, 2015 |
| California Chamber Of Commerce | ** Against | Sep 10, 2015 |
| California Citizens Against Law Suit Abuse | ** Against | Sep 10, 2015 |
| California Downtown Association | ** Support | Sep 10, 2015 |
| California Foundation For Independent Living Centers | * Against | Aug 25, 2015 |
| California Grocers Association | ** Support | Sep 10, 2015 |
| California Restaurant Association | ** Against | Sep 10, 2015 |
| Californians for Disability Rights | ** Against | Sep 10, 2015 |
| Civil Justice Association Of California | ** Support | Sep 10, 2015 |
| Consumer Attorneys Of California | ** Support | Sep 10, 2015 |
| Disability Rights California | ** Against | Sep 10, 2015 |
| Institute of Real Estate Management | ** Support | Sep 10, 2015 |
| International Council of Shopping Centers | ** Support | Sep 10, 2015 |
| National Association of Real Estate Investment Trusts | ** Support | Sep 10, 2015 |
| Retail Industry Leaders Association | ** Support | Sep 10, 2015 |
| Southwest California Legislative Council | ** Against | Sep 10, 2015 |
| Torrance Area Chamber of Commerce | ** Against | Sep 10, 2015 |
| United African-Asian Abilities Club | ** Against | Sep 10, 2015 |
AB 1521
Page 3
CONCURRENCE IN SENATE AMENDMENTS
AB 1521
(Committee on Judiciary)
As Amended September 4, 2015
2/3 vote. Urgency
ASSEMBLY: |
76-0 |
(May 28, 2015 |
SENATE: |
38-0 |
(September 10, 2015) |
Original Committee Reference: JUD.
SUMMARY: Provides additional information and legal resources to small business owners who may not realize how to minimize their liability for Americans with Disabilities Act (ADA) violations or respond to a lawsuit filed against them. Also limits the practice of high-volume lawsuits motivated by quick settlement with business owners, rather than correction of ADA violations. Specifically, this bill:
Revises the notice of rights and responsibilities that is required by current law to be provided to a defendant contemporaneously with service of a complaint or demand letter.
Requires the Judicial Council, by July 1, 2016, to develop a form to answer the complaint and requires a plaintiff's attorney to provide a defendant with a copy of the answer form created by the Judicial Council when serving the defendant with a complaint or demand letter (and the notice of rights and responsibilities, as required by existing law).
Defines a "high-frequency litigant" (HFL) as either a plaintiff who has filed 10 or more complaints alleging violations of construction-related accessibility standards in the past 12 months; or an attorney who has represented 10 or more such plaintiffs in the past year. For attorneys, claims that result in correction of violations do not count.
Imposes new procedural requirements on HFLs who file new claims: a) A higher filing fee; b) Special pleading requirements; and c) Certification by the attorney that, among other things, the complaint is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
Requires attorneys who file construction-related accessibility claims to notify the California Commission on Disability Access (CCDA or Commission) about how their claims are resolved.
The Senate amendments add the HFL provisions and CCDA reporting requirements.
FISCAL EFFECT:
According to the Senate Appropriations committee:
Minor one-time absorbable costs (General Fund*) for the Judicial Council to update and develop the specified forms.
Potential increase in revenues to the Trial Court Trust Fund and General Fund from the additional $1,000 filing fee on high-frequency litigants, as defined. To the extent the assessment of the additional fee serves to discourage the filing of construction-related accessibility claims that otherwise would have been filed, could result in some degree of workload relief to the trial courts.
Potential increase in the Proposition 98 minimum funding guarantee, potentially in excess of $50,000 (General Fund) annually should a specified portion of revenues from the high-frequency litigant fee be considered General Fund proceeds of taxes for purposes of calculating the minimum school funding obligation.
Unknown, potential future litigation costs (General Fund) to the extent imposing new requirements on one class of plaintiff (disabled litigants), due to the volume of cases filed, without regard to the legitimacy of the allegations or merits of each case, should be challenged in court.
*Trial Court Trust Fund
COMMENTS:
Under the federal ADA, a business that constitutes a place of public accommodation (e.g., many places of lodging, entertainment, recreation, restaurants, bars, theaters, stores, health clubs, etc.) is prohibited from discriminating on the basis of disability if its operations affect interstate commerce. Prohibited discrimination can take a number of forms – e.g., denial of participation in the facility, or a service, benefit, or good of the business; denial of equal participation in a good, service, or facility; or provision of a different or separate facility, service or good (unless necessary to provide services and the like that are as effective as that provided to others). Public accommodations in California are required to comply with not only the ADA, but also with the state's Unruh Act, which incorporates the ADA into its provisions and makes a violation of the ADA punishable as a violation of Unruh. All violations of Unruh are subject to statutory damages of at least four thousand dollars per violation, except some cases where the violation is based on a construction-related accessibility claim, in which case lower damages (a minimum of one thousand or two thousand dollars, depending on the circumstances of the case) apply.
Recent and objective evidence about the magnitude of ADA/Unruh litigation. California has approximately 3.3 million small businesses. According to data compiled by the Commission, from January 2014 until January 2015, 3,468 demand letters and complaints were filed in the state. This means that less than one percent of small businesses (and a far smaller percentage of all businesses) was sued in 2014 for violations of construction-related accessibility standards.
Nevertheless, some of the information reported to the Commission is alarming in terms of the number and frequency of construction-related accessibility lawsuits being filed by a small number of law firms in California. According to the Commission, between September 2012 and October 2014, 5,392 complaints (including demand letters) were filed (in both state and federal courts). More than half (54%) of the complaints were filed by just two law firms. Forty-six percent of all complaints were filed by just 14 parties.
What can be done or should be done about (the small number of) attorneys who file large numbers of Unruh Act-ADA lawsuits? The Ninth Circuit Court of Appeals addressed this issue in Molski v. Evergreen Dynasty Corp. (9th Cir. 2008) 521 F.3d 1215. Molski was paralyzed from the chest down, needed a wheelchair to get around, and filed about 400 lawsuits in the federal courts within the districts in California. Upon motion of the defendant businesses (including the named defendant, a restaurant) the district court declared Molski a vexatious litigant and granted the defendants' request for a pre-filing order (requiring court approval before Molski could file additional lawsuits). The Ninth Circuit acknowledged that "pre-filing orders are an extreme remedy that should rarely be used" and that courts "should not enter pre-filing orders with undue haste because such sanctions can tread on a litigant's due process right of access to the courts." Nevertheless, the Ninth Circuit upheld the order, finding that it was within the district court’s power, "In light of the district court's finding that Molski did not suffer the injuries he claimed . . . to conclude that the large number of complaints filed by Molski containing false or exaggerated allegations of injury were vexatious" and the pre-filing requirement could be issued.
This bill will help combat the problem of serial Unruh-ADA litigation in a number of ways. First of all, early and easy settlement by business owners is a problem because it fuels the unethical attorneys whose business model is easy settlement. Business owners, especially small businesses that are tenants in larger shopping centers, may not be liable for the damages they think they are exposed to. Landlords are responsible for maintaining parking lots in these complexes and are more likely to have the resources and wherewithal to litigate or settle claims and to bring the property into compliance. Second, the availability of a new answer form will allow the business owner to respond to the lawsuit and, in cases where it’s necessary or appropriate, to do so without hiring an attorney.
This bill seeks to slow the rate and number of lawsuits filed by the small number of attorneys who file large numbers of Unruh Act-ADA lawsuits. It is clear that a very small number of law firms files a very large and disproportionate share of Unruh-ADA lawsuits in California. This bill will limit the practice of high-volume lawsuits motivated by quick settlement with business owners, rather than correction of ADA violations in a number of ways:
Creates a new answer form, allowing business owners to respond to lawsuits and, where necessary or appropriate, to do so without hiring an attorney.
Defines a HFL as either a plaintiff who has filed 10 or more complaints alleging violations of construction-related accessibility standards in the past 12 months; or an attorney who has represented 10 or more such plaintiffs in the past year. For attorneys, claims that result in correction of violations do not count.
Imposes new procedural requirements on HFLs who file new claims: a) A higher filing fee; b) Special pleading requirements; c) Certification by the attorney that, among other things, the complaint is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
Requires attorneys who file construction-related accessibility claims to notify CCDA about how their claims are resolved.
This focus on HFLs is an important component of a comprehensive solution to the problem of serial ADA litigation.
Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334 FN: 0002291
AB 1521
Page 7
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: AB 1521
Author: Committee on Judiciary
Amended: 9/4/15 in Senate
SENATE JUDICIARY COMMITTEE: 5-1, 8/25/15
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Anderson
NO VOTE RECORDED: Moorlach
SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/27/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
ASSEMBLY FLOOR: Not relevant
SUBJECT: Disability access: construction-related accessibility claims
DIGEST: This bill makes various changes to the law as it pertains to construction-related accessibility claims.
Senate Floor Amendments of 9/4/15 update the bill language to reflect data reporting requirements added to the bill on September 3, 2015.
Existing law:
Provides, under the federal Americans with Disabilities Act (ADA), that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, or leases to, or operates a place of public accommodation. (42 U.S.C. Sec. 12182.)
Declares, under the Unruh Civil Rights Act, that all persons, regardless of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civ. Code Sec. 51 et seq.)
Provides that statutory damages may be recovered in a construction-related accessibility claim only if a violation or violations of one or more construction-related accessibility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion, by personally encountering the violation or being deterred from accessing the public accommodation on a particular occasion. (Civ. Code Sec. 55.56.)
Requires a plaintiff in a construction-related accessibility claim to state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim, including a plain language explanation of the specific access barrier or barriers the individual encountered, the location of the barrier, how the barrier denied the individual access, and the day or dates on which the plaintiff was deterred. (Code Civ. Proc. Sec. 425.50.)
Reduces a defendant’s minimum liability for statutory damages in a construction-related accessibility claim against a place of public accommodation to $1,000 for each unintentional offense if the defendant has had a Certified Access Specialist inspection, or occupies a building constructed after 2008, and corrected all construction-related violations that are the basis of the claim within 60 days of being served with the complaint. (Civ. Code Sec. 55.56(f)(1).)
Reduces a defendant’s minimum liability for statutory damages to $2,000 for each unintentional offense if the defendant has corrected all construction-related violations that are the basis of the claim within 30 days of being served with the complaint and the defendant is a small business, defined as less than $3.5 million in gross receipts and 25 or fewer employees, on average, over the past three years. (Civ. Code Sec. 55.56(f)(2).)
Requires that a written advisory, with information about state access laws, be provided by an attorney to the defendant along with the initial demand letter or complaint. (Civ. Code Secs. 55.3 and 55.54)
This bill:
Requires that any complaint filed by a high frequency litigant state the following:
That the complaint is filed by, or on behalf of, a high-frequency litigant.
The number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the past 12 months, as specified;
The reason the individual was in the geographic area of the defendant’s business, as specified; and
The reason why the individual desired to access the defendant’s business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose, as specified.
Requires that any complaint alleging a construction-related accessibility violation be signed by the attorney of record, or party if the plaintiff is representing himself, and that the signature certifies specified information.
Requires the Judicial Council, on or before July 1, 2016, to develop a form for defendant businesses to respond to a complaint alleging a construction-related accessibility violation which includes the following information:
Space for specific denials of the allegations in the complaint, including whether the plaintiff has demonstrated that he or she was denied full and equal access to the place of public accommodation on a particular occasion;
Space for potential affirmative defenses available to the defendant, including an assertion that the defendant’s landlord is responsible;
Any request to meet in person at the subject premises;
Whether the defendant qualifies for reduced damages; and
Instructions to a defendant who wishes to file the form as an answer to the complaint.
Allows a defendant business who has been served with a complaint by a high frequency litigant to request for a court stay and early evaluation conference.
Requires the court to order, upon a defendant’s request, the parties and their counsel to meet at the subject premises to jointly inspect the premises and review any issues that are claimed to constitute a violation of a construction-related accessibility standard. This bill authorizes the court to excuse a plaintiff who is unable, for good cause, to meet in person at the subject premises to be excused from participating in a site visit, as specified.
Defines a high frequency litigant as:
A plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation; or
An attorney who has represented 10 or more plaintiffs who were high-frequency litigants at the time when complaints alleging construction-related accessibility violations were filed on their behalf within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation excluding the following:
An action in which an early evaluation conference was held pursuant to section 55.54.
An action in which judgment was entered in favor of the plaintiff.
An action in which the construction-related accessibility violations alleged in the complaint were remedied in whole or in part, or a favorable result was achieved, after the plaintiff filed a complaint or provided a demand letter, as defined by section 55.3 of the Civil Code.
Makes various findings and declarations including:
A very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year;
These lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the accessibility violation; and
This practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations as they are entitled to have full and equal access under the state’s Unruh Civil Rights Act.
Requires a high frequency litigant to pay $1,000, in addition to the first filing fee, to be divided evenly between the trial court trust fund and the General Fund for use, as specified, by the California Commission on Disability Access (Commission).
Requires an attorney who serves a complaint to notify the Commission within five days of judgment, settlement, or dismissal of specified information including the following:
Whether or not the violations were remedied, as specified;
Whether the plaintiff achieved a favorable result; and
Whether the defendant submitted an application for an early evaluation conference and stay or site inspection, and the date of the site inspection.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes
According to the Senate Appropriations Committee:
Minor one-time absorbable costs (General Fund*) for the Judicial Council to update and develop the specified forms.
Potential increase in revenues to the Trial Court Trust Fund and General Fund from the additional $1,000 filing fee on high-frequency litigants, as defined. To the extent the assessment of the additional fee serves to discourage the filing of construction-related accessibility claims that otherwise would have been filed, could result in some degree of workload relief to the trial courts.
Potential increase in the Proposition 98 minimum funding guarantee, potentially in excess of $50,000 (General Fund) annually should a specified portion of revenues from the high-frequency litigant fee be considered General Fund proceeds of taxes for purposes of calculating the minimum school funding obligation.
Unknown, potential future litigation costs (General Fund) to the extent imposing new requirements on one class of plaintiff (disabled litigants), due to the volume of cases filed, without regard to the legitimacy of the allegations or merits of each case, should be challenged in court.
*Trial Court Trust Fund
Association of Commercial Real Estate – Northern and Southern California
Building Owners and Managers Association of California
California Association for Local Economic Development
California Business Property Association
California Downtown Association
California Grocers Association
Civil Justice Association of California
Consumer Attorneys of California
Institute of Real Estate Management
International Council of Shopping Centers
NAIOP of California, the Commercial Real Estate Developers Association
Retail Industry Leaders Association
National Association of Real Estate Investment Trusts
Southwest California Legislative Council
Torrance Area Chamber of Commerce
United African-Asian Abilities Club
ARGUMENTS IN SUPPORT: The author writes:
California has approximately 3.3 million small businesses. According to data compiled by the Commission, from January 2014 until January 2015, 3,468 demand letters and complaints were filed in the state. This means that less than one percent of small businesses (and a far smaller percentage of all businesses) were sued in 2014 for violations of construction-related accessibility standards.
Nevertheless, some of the information reported to the Commission is alarming in terms of the number and frequency of construction-related accessibility lawsuits being filed by a small number of law firms in California. According to the Commission, between September 2012 and October 2014, 5,392 complaints (including demand letters) were filed (in both state and federal courts). More than half (54 percent) of the complaints were filed by just two law firms. Forty-six percent of all complaints were filed by just 14 parties. These figures indicate that the vast majority of the construction-related accessibility lawsuits filed in this state are filed by a very small number of plaintiffs and their attorneys.
AB 1521 seeks to limit the practice of high-volume lawsuits motivated by the goal of obtaining quick settlements with business owners, rather than correcting violations of construction-related accessibility standards.
ARGUMENTS IN OPPOSITION: The United African-Asian Abilities Club (UAAAC) writes:
AB 1521 does not contain a purpose. However, by reading the bill as a whole, UAAAC has determined that the purpose is to stop ADA lawsuits. ... However, as noted below, the ADA lawsuits will continue because the California legislature only has the power to reduce or to eliminate statutory damages but it does not have the power to stop the lawyers from filing ADA lawsuits.
Prepared by: Nichole Rapier / JUD. / (916) 651-4113
9/8/15 21:59:25
**** END ****
AB 1521
Page 8
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: AB 1521
Author: Committee on Judiciary
Amended: 8/17/15 in Senate
SENATE JUDICIARY COMMITTEE: 5-1, 8/25/15
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Anderson
NO VOTE RECORDED: Moorlach
SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/27/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
ASSEMBLY FLOOR: Not relevant
SUBJECT: Disability access: construction-related accessibility claims
DIGEST: This bill makes various changes to the law as it pertains to construction-related accessibility claims.
Existing law:
Provides, under the federal Americans with Disabilities Act (ADA), that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, or leases to, or operates a place of public accommodation. (42 U.S.C. Sec. 12182.)
Declares, under the Unruh Civil Rights Act, that all persons, regardless of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civ. Code Sec. 51 et seq.)
Requires that an attorney who provides a demand letter must do the following:
Include the attorney’s State Bar license number in the demand letter; and
Provide a copy of the demand letter to the State Bar and the California Commission on Disability Access (Commission). (Civ. Code Sec. 55.32(a) and (b), repealed January 1, 2016.)
Provides that statutory damages may be recovered in a construction-related accessibility claim only if a violation or violations of one or more construction-related accessibility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion, by personally encountering the violation or being deterred from accessing the public accommodation on a particular occasion. (Civ. Code Sec. 55.56.)
Requires a plaintiff in a construction-related accessibility claim to state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim, including a plain language explanation of the specific access barrier or barriers the individual encountered, the location of the barrier, how the barrier denied the individual access, and the day or dates on which the plaintiff was deterred. (Code Civ. Proc. Sec. 425.50.)
Reduces a defendant’s minimum liability for statutory damages in a construction-related accessibility claim against a place of public accommodation to $1,000 for each unintentional offense if the defendant has had a Certified Access Specialist (CASp) inspection, or occupies a building constructed after 2008, and corrected all construction-related violations that are the basis of the claim within 60 days of being served with the complaint. (Civ. Code Sec. 55.56(f)(1).)
Reduces a defendant’s minimum liability for statutory damages to $2,000 for each unintentional offense if the defendant has corrected all construction-related violations that are the basis of the claim within 30 days of being served with the complaint and the defendant is a small business, defined as less than $3.5 million in gross receipts and 25 or fewer employees, on average, over the past three years. (Civ. Code Sec. 55.56(f)(2).)
Requires that a written advisory, with information about state access laws, be provided by an attorney to the defendant along with the initial demand letter or complaint. (Civ. Code Secs. 55.3 and 55.54)
Provides that upon being served with a complaint asserting a construction-related accessibility claim, a defendant may move for a 90-day stay and early evaluation conference if the defendant is:
Until January 1, 2018, a defendant whose site was approved pursuant to the local building permit and inspection process after January 1, 2008, and the defendant declares that all violations have been corrected, or will be corrected within 60 days of being served the complaint;
A defendant whose site had new construction or improvement that was approved by a local public building department inspector who is a CASp and the defendant declares that all violations have been corrected, or will be corrected within 60 days of being served the complaint; or
A defendant who is a small business, as described, and the process and the defendant declares that all violations have been corrected, or will be corrected within 30 days of being served the complaint. (Civ. Code Sec. 55.54.)
This bill:
Requires that any complaint filed by a high frequency litigant state the following:
That the complaint is filed by, or on behalf of, a high-frequency litigant.
The number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the past 12 months, as specified;
The reason the individual was in the geographic area of the defendant’s business, as specified; and
The reason why the individual desired to access the defendant’s business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose, as specified.
Requires that any complaint alleging a construction-related accessibility violation be signed by the attorney of record, or party if the plaintiff is representing himself, and that the signature certifies the following:
It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
The claims, defenses, and other legal contentions therein are warranted by existing law;
The allegations and other factual contentions have evidentiary support, as specified; and
The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
States that a court may, after notice and a reasonable opportunity to respond, impose sanctions on an attorney for violation of the above requirements.
Revises the written advisory to include additional information about liability allocation for construction-related accessibility claims, and state that some defendants may be able to reduce damages.
Requires the Judicial Council, on or before July 1, 2016, to develop a form for defendant businesses to respond to a complaint alleging a construction-related accessibility violation which includes the following information:
Space for specific denials of the allegations in the complaint, including whether the plaintiff has demonstrated that he or she was denied full and equal access to the place of public accommodation on a particular occasion;
Space for potential affirmative defenses available to the defendant, including an assertion that the defendant’s landlord is responsible;
Any request to meet in person at the subject premises;
Whether the defendant qualifies for reduced damages; and
Instructions to a defendant who wishes to file the form as an answer to the complaint.
Allows a defendant business who has been served with a complaint by a high frequency litigant to request for a court stay and early evaluation conference.
Requires the court to order, upon a defendant’s request, the parties and their counsel to meet at the subject premises to jointly inspect the premises and review any issues that are claimed to constitute a violation of a construction-related accessibility standard. This bill authorizes the court to excuse a plaintiff who is unable, for good cause, to meet in person at the subject premises to be excused from participating in a site visit, as specified.
Defines a high frequency litigant as:
A plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation; or
An attorney who has represented 10 or more plaintiffs who were high-frequency litigants at the time when complaints alleging construction-related accessibility violations were filed on their behalf within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.
Makes various findings and declarations including:
A very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year;
These lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the accessibility violation; and
This practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations as they are entitled to have full and equal access under the state’s Unruh Civil Rights Act.
Requires a high frequency litigant to pay $1,000, in addition to the first filing fee, to be divided evenly between the trial court trust fund and the General Fund for use, as specified, by the Commission.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes
According to the Senate Appropriations Committee:
Minor one-time absorbable costs (General Fund*) for the Judicial Council to update and develop the specified forms.
Potential increase in revenues to the Trial Court Trust Fund and General Fund from the additional $1,000 filing fee on high-frequency litigants, as defined. To the extent the assessment of the additional fee serves to discourage the filing of construction-related accessibility claims that otherwise would have been filed, could result in some degree of workload relief to the trial courts.
Potential increase in the Proposition 98 minimum funding guarantee, potentially in excess of $50,000 (General Fund) annually should a specified portion of revenues from the high-frequency litigant fee be considered General Fund proceeds of taxes for purposes of calculating the minimum school funding obligation.
Unknown, potential future litigation costs (General Fund) to the extent imposing new requirements on one class of plaintiff (disabled litigants), due to the volume of cases filed, without regard to the legitimacy of the allegations or merits of each case, should be challenged in court.
*Trial Court Trust Fund
Association of Commercial Real Estate – Northern and Southern California
Building Owners and Managers Association of California
California Association for Local Economic Development
California Business Property Association
California Downtown Association
Consumer Attorneys of California
Institute of Real Estate Management
International Council of Shopping Centers
NAIOP of California, the Commercial Real Estate Developers Association
Retail Industry Leaders Association
National Association of Real Estate Investment Trusts
OPPOSITION: (Verified 8/28/15)
American Civil Liberties Union of California
California Building Industry Association
California Chamber of Commerce
California Citizens Against Law Suit Abuse
Californians for Disability Rights, Inc.
California Restaurant Association
Disability Rights California
Santa Maria Valley Chamber of Commerce Visitors and Convention Bureau
Southwest California Legislative Council
Torrance Area Chamber of Commerce
United African-Asian Abilities Club
ARGUMENTS IN SUPPORT: The author writes:
California has approximately 3.3 million small businesses. According to data compiled by the Commission, from January 2014 until January 2015, 3,468 demand letters and complaints were filed in the state. This means that less than one percent of small businesses (and a far smaller percentage of all businesses) were sued in 2014 for violations of construction-related accessibility standards.
Nevertheless, some of the information reported to the Commission is alarming in terms of the number and frequency of construction-related accessibility lawsuits being filed by a small number of law firms in California. According to the Commission, between September 2012 and October 2014, 5,392 complaints (including demand letters) were filed (in both state and federal courts). More than half (54 percent) of the complaints were filed by just two law firms. Forty-six percent of all complaints were filed by just 14 parties. These figures indicate that the vast majority of the construction-related accessibility lawsuits filed in this state are filed by a very small number of plaintiffs and their attorneys.
AB 1521 seeks to limit the practice of high-volume lawsuits motivated by the goal of obtaining quick settlements with business owners, rather than correcting violations of construction-related accessibility standards.
ARGUMENTS IN OPPOSITION: Disability Rights California (DRC), in opposition, argues that designating attorneys who specialize in construction-related accessibility litigation as high frequency litigations, will restrict a valuable resource that the disability community relies on when enforcing access laws. DRC writes:
There is nothing inappropriate with a lawyer having a thriving practice. In fact, these cases may be perfectly lawful and often are the only means to address disability access violations. Assuming that it is appropriate to subject the claims of frequent plaintiffs to these procedures, it is not appropriate to apply these hurdles to the cases filed by those who hire a lawyer to file only one claim.
We also believe it is poor public policy and opens the door to a “slippery slope” to impose additional procedural rules on attorneys and their clients based on the number of cases in which the lawyer has been involved. This precedent may spill over into other practice areas, resulting in a chilling effect on the legal profession. Additionally, imposing a higher filing fee of $1000 on a plaintiff who is considered a “high frequency litigant” will also have a chilling effect, limiting access to the courts for many individuals with disabilities who have limited incomes.
ASSEMBLY FLOOR: 76-0, 5/28/15
AYES: Alejo, Travis Allen, Baker, Bigelow, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gonzalez, Gordon, Gray, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Achadjian, Bloom, Gomez, Grove
Prepared by: Nichole Rapier / JUD. / (916) 651-4113
8/31/15 11:43:37
**** END ****
AB 1521 (Committee on Judiciary) Page 4 of 4
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 1521 (Committee on Judiciary) - Disability access: construction-related accessibility claims
|
|
Version: August 17, 2015 |
Policy Vote: JUD. 5 - 1 |
Urgency: Yes |
Mandate: Yes |
Hearing Date: August 27, 2015 |
Consultant: Jolie Onodera |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
AB 1521, an urgency measure, would make various changes to the law as it pertains to construction-related accessibility claims, as specified. This bill would create a new fee of $1,000 to be assessed on high-frequency litigants, as defined, in addition to the first filing fee, to be distributed between the General Fund and Trial Court Trust Fund, as specified.
Fiscal Impact:
Minor one-time absorbable costs (General Fund*) for the Judicial Council to update and develop the specified forms.
Potential increase in revenues to the Trial Court Trust Fund and General Fund from the additional $1,000 filing fee on high-frequency litigants, as defined. To the extent the assessment of the additional fee serves to discourage the filing of construction-related accessibility claims that otherwise would have been filed, could result in some degree of workload relief to the trial courts.
Potential increase in the Proposition 98 minimum funding guarantee, potentially in excess of $50,000 (General Fund) annually should a specified portion of revenues from the high-frequency litigant fee be considered General Fund proceeds of taxes for purposes of calculating the minimum school funding obligation.
Unknown, potential future litigation costs (General Fund) to the extent imposing new requirements on one class of plaintiff (disabled litigants), due to the volume of cases filed, without regard to the legitimacy of the allegations or merits of each case, should be challenged in court.
*Trial Court Trust Fund
Background:
According to the Senate Committee on Judiciary analysis of this measure (August 25, 2015), data collected by the California Commission on Disability Access indicates that of the nearly 5,400 access-related complaints filed between September 2012 and October 2014, 54 percent of the cases were filed by two law firms, and 14 plaintiffs were involved in 46 percent of the cases.
This bill seeks to limit the practice of high-volume lawsuits motivated by the goal of obtaining quick settlements with business owners, rather than correcting violations of construction-related accessibility standards.
Proposed Law:
This bill would make various changes to the law as it pertains to construction-related accessibility claims, in summary, as follows:
Specifies that a “high-frequency litigant” means one of the following:
A plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.
An attorney who has represented 10 or more plaintiffs who were high-frequency litigants at the time when complaints alleging construction-related accessibility violations were filed on their behalf within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.
Requires a high frequency litigant, as defined, to include additional information in a complaint and pay a $1,000 fee in addition to the first paper filing fee, as specified.
Specifies for each additional $1,000 fee, the Administrative Office of the Courts is to distribute the amounts as follows:
$500 to the General Fund for use, upon appropriation by the Legislature, by the California Commission on Disability Access.
The remainder of the fee to the Trial Court Trust Fund.
Requires the Judicial Council to, on or before July 1, 2016, develop an answer form for defendant businesses to respond to a complaint alleging a construction-related accessibility violation which includes specified information.
Requires the existing advisory, which must be provided to a defendant with each demand letter or complaint, to include additional information regarding the rights and obligations of business owners and commercial tenants, as specified.
Requires an attorney to provide a defendant or potential defendant with an answer form developed by the Judicial Council, which would allow a defendant to respond in the event a complaint is filed, as specified.
Requires, if requested by the defendant, the court to order the parties and their counsel to meet at the subject premises to jointly inspect the premises, as specified.
Requires property owners to indemnify a microbusiness tenant, as defined, from liability arising from any construction-related accessibility claims, as specified.
Specifies that attorneys and/or plaintiffs must certify that specified conditions have been met, including, but not limited to, that the action is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay, as specified.
Related Legislation:
AB 52 (Gray) 2015 would provide that a defendant’s maximum liability for statutory damages in a construction-related accessibility claim against a place of public accommodation is $1,000 for each offense if the defendant has corrected all construction-related violations within 180 days of being served with the complaint. This bill is currently in the Assembly Judiciary Committee.
AB 54 (Olsen) 2015 would include any amount paid or incurred by a taxpayer to receive an inspection by a CASp as an eligible access expenditure for the Personal Income Tax Law and the Corporation Tax Law which allows a credit to eligible small businesses for 50 percent of eligible access expenditures. This bill is currently in the Assembly Revenue and Taxation Committee.
AB 1230 (Gomez) 2015 would establish the California Americans with Disabilities Act Small Business Compliance Finance Act to provide loans to assist small businesses finance the costs of projects that alter or retrofit existing small business facilities to comply with the federal American with Disabilities Act. This bill is pending on the Suspense File of this Committee.
AB 1342 (Steinorth) 2015 would provide additional revenue to the California Commission on Disability Access. This bill is pending on the Suspense File of this Committee.
AB 1468 (Baker) 2015 would provide that a public entity’s possession of a close out letter from the State Architect certifying that the buildings, facilities, and other places meet the applicable construction-related accessibility standards of the federal Americans with Disabilities Act, serves as presumptive evidence of compliance with the federal Americans with Disabilities Act. This bill is currently in the Assembly Judiciary Committee.
SB 67 (Galgiani) 2015 would limit recovery against a small business for construction-related accessibility claims to injunctive relief and reasonable attorney’s fees, and would allow businesses who have undergone a CASp inspection 120 days to correct violations in order to qualify for reduced statutory minimum damages.
SB 251 (Roth 2015 would provide that a defendant is not liable for certain violations if fixed within 15 days, as specified, and would exempt a defendant from liability for minimum statutory damages with respect to a structure or area inspected by a certified access specialist for a period of 120 days if specified conditions are met. This bill is pending on the Suspense File of the Assembly Appropriations Committee.
Prior Legislation: SB 1186 (Steinberg/Dutton) Chapter 383/2012 reduced statutory damages and provided litigation protections for specified defendants who timely correct construction-related accessibility violations of the Unruh Civil Rights Act. This bill also banned pre-litigation “demands for money” and created rules for demand letters and complaints in claims involving construction-related accessibility violations.
AB 2282 (Berryhill) 2012 would have authorized an aggrieved person to bring a disability access suit only under specified circumstances. This bill was held on the Suspense File of this Committee.
SB 1163 (Walters) 2012 would have established notice requirements for an aggrieved party to follow before he or she could bring a disability access suit and give the business owner a 120-day time period to remedy the violation. This bill failed passage in the Senate Committee on Judiciary.
Staff Comments:
The Judicial Council has indicated one-time minor and absorbable costs to revise and develop the forms required under this bill. Additionally, to the extent the provisions of the bill reduce the frequency of litigation for construction-related accessibility claims, the courts could potentially experience some degree of reduced trial court workload.
Staff notes this measure currently includes an urgency clause that requires a two-thirds vote of the Legislature for passage. In the absence of the urgency clause, the new high-frequency litigant fee created under the provisions of this bill could potentially constitute a tax under Proposition 26 of the November 2010 General Election, which amended Section 3 of Article XIIIA of the California Constitution and broadened the definition of a state or local tax to include various payments previously considered to be fees or charges.
Specifically, $500 of the $1,000 fee assessed on high-frequency litigants is to be distributed to the General Fund for use, upon appropriation by the Legislature, by the California Commission on Disability Access. To the extent these revenues are not considered a charge imposed for a specific benefit or government service provided directly to the payor that is not provided to those not charged, this portion of the high-frequency litigant fee could potentially be considered a tax.
If these fees are deemed a tax, at least 40 percent of the new revenue would be allocated to K-14 education pursuant to Proposition 98. In some years, however, a notably higher share of the associated revenue might need to be allocated to K-14 education. The exact share going to K-14 education would depend upon various factors, including the size of the Proposition 98 maintenance factor, how the maintenance factor is repaid, and the overall growth in state revenues.
Because the level of revenue collected for the new fee is unknown at this time, it is difficult to assess the potential impact on the Proposition 98 guarantee. The Senate Judiciary Committee analysis of this measure noted that the California Commission on Disability Access indicates that of the 5,392 access-related complaints filed between September 2012 and October 2014, 54 percent of the cases were filed by two law firms, and 14 plaintiffs were involved in 46 percent of the cases. For illustrative purposes, assuming 250 filings (less than five percent of total filings) were impacted, $125,000 of the $250,000 in revenues collected would be distributed to the General Fund. Based on the 40 percent allocation pursuant to Proposition 98 would result in a $50,000 General Fund increase in the Proposition 98 guarantee.
Should a share of the new revenues be required to be set aside for the Proposition 98 minimum funding guarantee, the revenues available to the General Fund for the use by the California Commission on Disability Access, would likewise be reduced.
-- END --
AB 1521 (Committee on Judiciary)
Page 16 of 16
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1521 (Committee on Judiciary)
Version: August 17, 2015
Hearing Date: Aug 25, 2015
Fiscal: Yes
Urgency: Yes
NR
SUBJECT
Disability access: construction-related accessibility claims
DESCRIPTION
This bill would make various changes to the law as it pertains to construction-related accessibility claims including:
requiring a high frequency litigant, as defined, to include additional information in a complaint and pay $1,000 in addition to the filing fee, as specified;
requiring the existing advisory, which must be provided to a defendant with each demand letter or complaint, to include additional information regarding the rights and obligations of business owners and commercial tenants, as specified;
requiring an attorney to provide a defendant or potential defendant with an answer form developed by the Judicial Council, which would allow a defendant to respond in the event a complaint is filed, as specified;
requiring, if requested by the defendant, the court to order the parties and their counsel to meet at the subject premises to jointly inspect the premises, as specified;
requiring property owners to indemnify a microbusiness tenant, as defined, from liability arising from any construction-related accessibility claims, as specified; and
specifying that attorneys and/or plaintiffs must certify that specified conditions have been met, including, but not limited to, that the action is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay, as specified.
BACKGROUND
Since 1969, persons with disabilities have enjoyed protection under Civil Code
Sections 54 and 54.1, which entitle individuals with disabilities and medical conditions to full and free access to and use of roadways, sidewalks, buildings and facilities open to the public, hospitals and medical facilities, and housing. After Congress enacted the Americans with Disabilities Act (ADA) in 1990, the state made a violation of the ADA also a violation of Section 54 or 54.1. The state protections provided to disabled persons are comparatively higher than those provided under the ADA and are independent of the ADA.
Additionally, under the Unruh Civil Rights Act, all persons, regardless of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civil Code Sec. 51.) A violation of the ADA also constitutes a violation of Section 51. A violation of that section subjects a person to actual damages incurred by an injured party, plus treble actual damages, but in no event less than $4,000, and any attorney’s fees as the court may determine to be proper. (Civil Code Sec. 52.)
The California Legislature has taken further steps to ensure disability access laws are complied with. SB 262 (Kuehl, Chapter 872, Statutes of 2003) established in the Division of the State Architect, a voluntary “access specialist certification program” in order to assist business and property owners in complying with ADA and state access laws. In 2003 and 2005, several bills were introduced after multiple lawsuits were filed in state court by a few plaintiffs and attorneys against business owners and operators for allegedly technical violations of the state’s access or ADA regulations. (SB 69 (Oller, 2003), AB 209 (Leslie, 2003), AB 20 (Leslie, 2005), SB 855 (Poochigian, 2005).) Three of those bills would have required a plaintiff to undertake prelitigation steps prior to the filing of a complaint, including providing notice to the owner of the property or business of the alleged violations, and provided a specified time period for the owner or business to cure the violations. One bill, (AB 20, Leslie, 2005) would have precluded an action for damages for a de minimus violation, allowing only injunctive relief and attorney’s fees. All of those bills failed passage in the Judiciary Committees of their respective houses.
In 2008, two bills were introduced relating to disability access. AB 2533 (Keene, 2008) and SB 1766 (McClintock, 2008) would have both imposed prelitigation hurdles on plaintiffs claiming violations of construction-related disability access laws. Both of these bills failed in the Judiciary Committees of their respective houses. In 2011, SB 783 (Dutton, 2011) would have established notice requirements for an aggrieved party to follow before he or she can bring a disability access suit and given the business owner a 120-day time period to remedy the violation. That bill failed passage in this Committee.
Alternatively, SB 1608 (Corbett et al., Ch. 549, Stats. 2008), which took effect January 1, 2009, did not create any pre-litigation hurdles for a person with a disability but instead, among other things, provided for an early evaluation of a filed complaint if the defendant is a qualified defendant who had the identified place of public accommodation inspected and determined to meet applicable physical access standards by a state Certified Access Specialist (CASp) prior to the filing of the complaint.
In 2012, Senators Steinberg and Dutton authored SB 1186 (Ch. 383, Stats. 2012) which sought to comprehensively address continued issues with disability litigation. SB 1186 created a number of protections for small businesses and defendants who had, prior to a claim being filed, sought out a CASp inspection. These protections included reduced minimum statutory damages, early evaluation conferences, and mandatory stays of court proceedings while the violations were corrected. That bill also prevented the stacking of multiple claims to increase damages, banned pre-litigation demands for money, and increased data collection regarding alleged access violations.
Subsequently, data collected by the California Commission on Disability Access indicated that of the 5,392 access-related complaints filed between September 2012 and October 2014, 54 percent of the cases were filed by two law firms, and 14 plaintiffs were involved in 46 percent of the cases. Accordingly, this bill seeks to further limit the practice of high-volume lawsuits by, among other provisions, placing additional procedural requirements on high frequency litigants and attorneys.
CHANGES TO EXISTING LAW
Existing federal law, the Americans with Disabilities Act (ADA), provides that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, or leases to, or operates a place of public accommodation. (42 U.S.C. Sec. 12182.)
Existing law, the Unruh Civil Rights Act, declares that all persons, regardless of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civ. Code Sec. 51 et seq.)
Existing law requires that an attorney who provides a demand letter must do the following:
include the attorney’s State Bar license number in the demand letter; and
provide a copy of the demand letter to the State Bar and the California Commission on Disability Access. (Civ. Code Sec. 55.32(a) and (b), repealed January 1, 2016.)
Existing law provides that statutory damages may be recovered in a construction-related accessibility claim only if a violation or violations of one or more construction-related accessibility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion, by personally encountering the violation or being deterred from accessing the public accommodation on a particular occasion. (Civ. Code Sec. 55.56.)
Existing law requires a plaintiff in a construction-related accessibility claim to state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim, including a plain language explanation of the specific access barrier or barriers the individual encountered, the location of the barrier, how the barrier denied the individual access, and the day or dates on which the plaintiff was deterred. (Code Civ. Proc. Sec. 425.50.)
Existing law reduces a defendant’s minimum liability for statutory damages in a construction-related accessibility claim against a place of public accommodation to $1,000 for each unintentional offense if the defendant has had a CASp inspection, or occupies a building constructed after 2008, and corrected all construction-related violations that are the basis of the claim within 60 days of being served with the complaint. (Civ. Code Sec. 55.56(f)(1).)
Existing law reduces a defendant’s minimum liability for statutory damages to $2,000 for each unintentional offense if the defendant has corrected all construction-related violations that are the basis of the claim within 30 days of being served with the complaint and the defendant is a small business, defined as less than $3.5 million in gross receipts and 25 or fewer employees, on average, over the past three years. (Civ. Code Sec. 55.56(f)(2).)
This bill would additionally require that any complaint filed by a high frequency litigant state the following:
that the complaint is filed by, or on behalf of, a high-frequency litigant.
the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the past 12 months, as specified;
the reason the individual was in the geographic area of the defendant’s business, as specified; and
the reason why the individual desired to access the defendant’s business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose, as specified.
This bill would require that any complaint alleging a construction-related accessibility violation be signed by the attorney of record, or party if the plaintiff is representing himself, and that the signature certifies the following:
it is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
the claims, defenses, and other legal contentions therein are warranted by existing law;
the allegations and other factual contentions have evidentiary support, as specified; and
the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
This bill would state that a court may, after notice and a reasonable opportunity to respond, impose sanctions on an attorney for violation of the above requirements.
Existing law requires that a written advisory, with information about state access laws, be provided by an attorney to the defendant along with the initial demand letter or complaint. (Civ. Code Secs. 55.3 and 55.54)
Existing law provides that upon being served with a complaint asserting a construction-related accessibility claim, a defendant may move for a 90-day stay and early evaluation conference if the defendant is:
until January 1, 2018, a defendant whose site was approved pursuant to the local building permit and inspection process after January 1, 2008, and the defendant declares that all violations have been corrected, or will be corrected within 60 days of being served the complaint;
a defendant whose site had new construction or improvement that was approved by a local public building department inspector who is a CASp and the defendant declares that all violations have been corrected, or will be corrected within 60 days of being served the complaint; or
a defendant who is a small business, as described, and the process and the defendant declares that all violations have been corrected, or will be corrected within 30 days of being served the complaint. (Civ. Code Sec. 55.54.)
This bill would revise the written advisory to include additional information about liability allocation for construction-related accessibility claims, and state that some defendants may be able to reduce damages.
This bill would require the Judicial Council, on or before July 1, 2016, to develop a form for defendant businesses to respond to a complaint alleging a construction-related accessibility violation which includes the following information:
space for specific denials of the allegations in the complaint, including whether the plaintiff has demonstrated that he or she was denied full and equal access to the place of public accommodation on a particular occasion;
space for potential affirmative defenses available to the defendant, including an assertion that the defendant’s landlord is responsible;
any request to meet in person at the subject premises;
whether the defendant qualifies for reduced damages; and
instructions to a defendant who wishes to file the form as an answer to the complaint.
This bill would additionally allow a defendant business who has been served with a complaint by a high frequency litigant to request for a court stay and early evaluation conference.
This bill would require the court to order, upon a defendant’s request, the parties and their counsel to meet at the subject premises to jointly inspect the premises and review any issues that are claimed to constitute a violation of a construction-related accessibility standard. This bill would authorize the court to excuse a plaintiff who is unable, for good cause, to meet in person at the subject premises to be excused from participating in a site visit, as specified.
This bill would define a high frequency litigant as:
a plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation; or
an attorney who has represented 10 or more plaintiffs who were high-frequency litigants at the time when complaints alleging construction-related accessibility violations were filed on their behalf within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.
This bill makes various findings and declarations including:
a very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year;
these lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the accessibility violation; and
this practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations as they are entitled to have full and equal access under the state’s Unruh Civil Rights Act.
This bill would require a high frequency litigant to pay $1000, in addition to the first filing fee, to be divided evenly between the trial court trust fund and the General Fund for use, as specified, by the California Commission on Disability Access.
COMMENT
Stated need for the bill
According to the author:
California has approximately 3.3 million small businesses. According to data compiled by the Commission, from January 2014 until January 2015, 3,468 demand letters and complaints were filed in the state. This means that less than one percent of small businesses (and a far smaller percentage of all businesses) were sued in 2014 for violations of construction-related accessibility standards.
Nevertheless, some of the information reported to the Commission is alarming in terms of the number and frequency of construction-related accessibility lawsuits being filed by a small number of law firms in California. According to the Commission, between September 2012 and October 2014, 5,392 complaints (including demand letters) were filed (in both state and federal courts). More than half (54 percent) of the complaints were filed by just two law firms. Forty-six percent of all complaints were filed by just 14 parties. These figures indicate that the vast majority of the construction-related accessibility lawsuits filed in this state are filed by a very small number of plaintiffs and their attorneys.
AB 1521 seeks to limit the practice of high-volume lawsuits motivated by the goal of obtaining quick settlements with business owners, rather than correcting violations of construction-related accessibility standards.
High frequency litigants
This bill would impose additional procedural requirements on “high frequency litigants (HFL),” defined as a plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the past 12 months, or an attorney who has represented 10 or more HFL plaintiffs in the 12 months immediately preceding the filing of the current complaint alleging a construction-related accessibility violation. The Consumer Attorneys of California (CAOC) write in support:
We are working in good faith to find a solution that both enhances disability access compliance, yet stops the abusive practices of some attorneys who are suing small businesses for fees, not compliance. We think the practices of these few attorneys and plaintiffs who seek fees and not correction are wrong and are an affront to people with disabilities and the laws this state has enacted to protect the civil rights of those with disabilities.
By placing new requirements on disabled litigants, this bill raises the policy question of whether additional burdens should be imposed on one class of plaintiff because of the sheer volume of cases they file, without regard to the merits of each case or legitimacy of the allegations. As discussed below, those additional burdens would require only disabled plaintiffs (and their attorneys) to comply with 1) a heightened pleading standard, 2) a higher filing fee, and 3) a subject premises visit at the request of a defendant.
Heightened pleading standard
This bill would require an HFL to identify himself or herself as an HFL and to provide specific information in a complaint including the number of complaints alleging a construction-related accessibility violation that the plaintiff has filed during the past 12 months, the reason the individual was in the geographic area of the defendant’s business, and the reason why the individual desired to access the defendant’s business.
As a general rule, information that lacks the ability to prove or disprove an element of a claim lacks relevance and is inadmissible. Relevant information that has the potential to prejudice the trier of fact, be it a judge or jury, is excluded if its probative value is outweighed by the prejudicial effect. With regard to construction-related accessibility violations, a plaintiff is required to prove that he or she encountered an access barrier or was deterred by an access barrier. Accordingly, this bill would appear to require information be provided in the complaint that may not otherwise be admissible because it may not prove or disprove an element of the claim.
Higher filing fee
This bill would require HFLs to pay, in addition to the standard filing fee, a $1,000 fee which would be divided equally between the Trial Court Trust Fund and the General Fund for use by the California Commission on Disability Access. To justify treating HFLs differently than other plaintiffs, this bill contains Legislative findings and declarations including that “more than one-half, or 54 percent, of all construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms. Forty-six percent of all complaints were filed by a total of 14 parties. Therefore, a very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year. Moreover, these lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the accessibility violation. This practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations as they are entitled to have full and equal access under the state’s Unruh Civil Rights Act … and the federal Americans with Disability Act of 1990 ....”
As a matter of practice, civil laws, including the ADA and Unruh, are enforced through private actions. The ability to seek relief when access has been denied due to a construction-related access violation is the right of a disabled person in the same way that a woman who has been passed over for a promotion because of her gender or a minority who was refused service based on his race, has the right to sue the person who discriminated against them. The author and the proponents of this bill have not alleged that the HFLs are bringing unmeritorious cases, but instead that they are filing too many cases without seeking compliance from business owners.
Subject premises visit
This bill would require the court, if requested by a defendant who qualifies for an early evaluation conference (see Comment 3(b) below), to order the parties and their counsel to meet at the subject premises to inspect the issues that are the basis of the claim, and would allow a court to excuse a plaintiff from this meeting for good cause. The author writes that “for the small number of plaintiffs who have a practice of filing large numbers of ADA lawsuits, hoping for quick settlements … this requirement is extremely burdensome. For plaintiffs who seek redress (and correction) of ADA violations, this process is an effective way to reach a mutually agreeable compromise and avoid the process of litigation.”
Staff notes that this requirement would not be limited to HFLs. Any qualified defendant (e.g., a small business, a CASp-inspected business; new construction; or a business sued by an HFL) could require the court to order this meeting. Once requested by a qualified defendant, a plaintiff would have to show “good cause” for why he or she should be excused from this requirement, which may be a burden that a self-represented plaintiff would struggle to satisfy. This bill does not define “good cause,” but raises the policy question of whether a person should be required to return to the scene where he or she was denied access and potentially had a painful or highly embarrassing experience. In addition, as noted by the author above, requiring a plaintiff to return to the subject premises could, in many instances, be “extremely burdensome.”
Regulating attorneys
In addition to regulating litigants, this bill would also define an attorney as a high frequency litigant if he or she represented more than 10 HFL plaintiffs in the 12 months immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.
Disability Rights California, in opposition, writes that designating attorneys who specialize in construction-related accessibility litigation as HFLs, will restrict a valuable resource that the disability community relies on when enforcing access laws.
Lawyers are not litigants. We concur with the American Civil Liberties Union (ACLU) and other opponents that targeting lawyers in the definition of” high-frequency litigant” means individuals with disabilities will face additional procedural obstacles which further limit their ability to exercise their civil rights for disability access violations. This will occur simply because they chose a lawyer with an active practice and represented 10 people that filed 10 claims in a 12- month period.
There is nothing inappropriate with a lawyer having a thriving practice. In fact, these cases may be perfectly lawful and often are the only means to address disability access violations. Assuming that it is appropriate to subject the claims of frequent plaintiffs to these procedures, it is not appropriate to apply these hurdles to the cases filed by those who hire a lawyer to file only one claim.
We also believe it is poor public policy and opens the door to a “slippery slope” to impose additional procedural rules on attorneys and their clients based on the number of cases in which the lawyer has been involved. This precedent may spill over into other practice areas, resulting in a chilling effect on the legal profession. Additionally, imposing a higher filing fee of $1000 on a plaintiff who is considered a “high frequency litigant” will also have a chilling effect, limiting access to the courts for many individuals with disabilities who have limited incomes.
In support, the Consumer Attorneys of California argue that it is important to stop “the abusive practices of some attorneys who are filing multiple lawsuits against mostly small businesses and seeking fees, not compliance.”
The American Civil Liberties Union of California (ACLU), in opposition, further argues that a dangerous precedent to impose special procedural rules on attorneys and their clients based on the number of cases in which the lawyer has been involved. This model could easily be extended to lawyers who represent other unpopular causes and it will do little to curb the practices of unethical attorneys because it would be relatively easy to not trigger the requirement. The ACLU writes, “If there are disreputable lawyers practicing in this area, they cannot do so without a plaintiff. Regulating the cases filed by high-volume plaintiffs, as the bill proposes, will therefore have the desired effect of subjecting potentially suspect cases to greater court scrutiny and supervision without to need to include lawyers in the definition. While it may be imagined that the targeted lawyers will simply find more plaintiffs in an effort to avoid the limits on high-frequency plaintiffs, this fear is belied by the facts and the law. Even assuming that unscrupulous lawyers were attempt to solicit additional plaintiffs to find disability access violations, existing law prohibits this client solicitation. Moreover, it would take 30 people to replace one plaintiff who filed approximately 300 lawsuits in that period. If there was a large pool of people willing to file many cases per year, high-filing plaintiffs would not be the same very small group year after year.”
This bill would also require that an attorney (or a self-represented litigant) certify that: 1) to the best of the person’s knowledge, the complaint is not being presented primarily for an improper purpose; 2) the legal contentions therein are warranted by existing law; 3) the allegations and other factual contentions have evidentiary support or, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and 4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
Staff notes that this language is nearly identical to the requirements set forth in the Code of Civil Procedure Section 128.7, which is controlling over construction-related accessibility claims.
Defendants in construction-related accessibility actions
This bill would create procedural protections for certain defendant businesses who are served a complaint for an alleged violation of a construction-related accessibility standard, including subject premises meetings and allowing defendants who are sued by an HFL to qualify for a court stay and an early evaluation conference. This bill would also require that the Judicial Council create an answer form for defendants in these actions, which must be provided to a defendant along with a demand letter or complaint.
Protections for defendants who have not taken steps to bring their businesses into compliance
Under existing law there are a few types of qualified defendants who qualify for certain procedural protections when being sued for a construction-related accessibility violation: 1) a small business; 2) a business who has taken certain proactive steps to make its premises compliant with access laws; and 3) businesses whose buildings were constructed or improved after 2008. This bill would, in effect, create a new type of qualified defendant by providing that a business that is sued by an HFL would qualify for a 90-day stay and early evaluation conference as well.
As a matter of public policy, protections should arguably be given to vulnerable parties, such as small businesses who may not have the resources or sophistication to ensure a building is compliant, or those who proactively try to bring a building into compliance with existing law, such as businesses who order a certified access specialist (CASp) inspection and are actively trying to fix violations. However, granting protections to businesses that have done nothing to correct access violations would appear to not incentivize business owners to proactively address access issues. In addition, this particular provision may have the unintended consequence of allowing a HFL to get into court earlier than he or she otherwise would have, thus giving them preferential treatment.
The author further notes that since early evaluation conferences have been available to certain defendants since (SB 1608 (Corbett), Ch. 549, Stats. 2008) “more attorneys are choosing to file lawsuits in federal court, perhaps to avoid, among other things, participating in EECs.”
Judicial Council answer form
This bill would require the Judicial Council to create an answer form, which would be provided to every defendant in a construction-related accessibility action, and instructions for those defendants who wish to personally file the form as an answer to the complaint. This form would have space for a defendant to respond to allegations in the complaint, list any affirmative defenses, and any other information the defendant thinks is relevant to his or her liability, including whether the defendant believes he or she qualifies for reduced statutory damages.
Construction-related access actions are complicated cases. Multiple parties may be liable for violations, and whether or not a property contains a violation depends on many factors. As a practical matter, it is essential that a defendant receiving the form understand that he or she may need to hire an attorney, is not required to use the form, and that, absent legal advice, could inadvertently make damaging admissions.
Allocating responsibility between property owner and tenant
This bill would require that a property owner indemnify a microbusiness tenant for any construction-related barrier that existed prior to the initiation, renewal, or extension of the lease, as specified. The bill would also allow responsibility for access to be allocated between the property owner and the microbusiness tenant by written agreement.
The California Chamber of Commerce, representing a large coalition of organizations, writes, “mandating liability between parties to a contract is a significant interference with the contractual relationship and their ability to negotiate various terms. Moreover, AB 1521 mandates liability onto the owner, despite the potential lack of control over the premises or knowledge of changes to the property that created the ‘construction-related barrier.’ This mandate will result in more litigation for both the tenant and owner regarding who is responsible when such provisions can already be determined through provisions in a contract.”
However, because property owners may often be in a greater position of power than tenants, staff notes that this section of the bill arguably does not go far enough to protect tenants given that it allows property owners and commercial tenants to allocate responsibility through a written agreement.
The author has worked diligently to resolve the concerns of various stakeholders and this Committee, but as of yet has been unable to come to a workable solution. Accordingly, the author has agreed to remove this section of the bill.
Support: Consumer Attorneys of California
Opposition: American Civil Liberties Union of California; California Building Industry Association; California Business Property Association; California Chamber of Commerce; California Citizens Against Law Suit Abuse; California Grocers Association; Californians for Disability Rights, Inc.; California Restaurant Association; Civil Justice Association of California; Disability Rights California; Santa Maria Valley Chamber of Commerce Visitors and Convention Bureau; Southwest California Legislative Council; Torrance Area Chamber of Commerce; United African-Asian Abilities Club
HISTORY
Source: Author
Related Pending Legislation:
AB 52 (Gray, 2015) would provide that the defendant’s maximum liability for statutory damages in a construction-related accessibility claim against a place of public accommodation is $1,000 for each offense if the defendant has corrected all construction-related violations within 180 days of being served with the complaint. This bill is currently in the Assembly Judiciary Committee.
AB 54 (Olsen, 2015) would include any amount paid or incurred by a taxpayer to receive an inspection by a CASp as an eligible access expenditure for the Personal Income Tax Law and the Corporation Tax Law which allows a credit to eligible small businesses for 50 percent of eligible access expenditures. This bill is currently in the Assembly Revenue and Taxation Committee.
AB 1230 (Gomez, 2015) would establish the California Americans with Disabilities Act Small Business Compliance Finance Act to provide loans to assist small businesses finance the costs of projects that alter or retrofit existing small business facilities to comply with the federal American with Disabilities Act. This bill is currently in the Assembly Appropriations Committee.
AB 1342 (Steinorth, 2015) would provide additional revenue to the California Commission on Disability Access. This bill is currently in the Assembly Appropriations Committee.
AB 1468 (Baker, 2015) would provide that a public entity’s possession of a close out letter from the State Architect certifying that the buildings, facilities, and other places meet the applicable construction-related accessibility standards of the federal Americans with Disabilities Act, serves as presumptive evidence of compliance with the federal Americans with Disabilities Act. This bill is currently in the Assembly Judiciary Committee.
SB 67 (Galgiani, 2015) would limit recovery against a small business for construction-related accessibility claims to injunctive relief and reasonable attorney’s fees, and would allow businesses who have undergone a CASp inspection 120 days to correct violations in order to qualify for reduced statutory minimum damages.
SB 251 (Roth, 2015) would provide that a defendant is not liable for certain violations if fixed within 15 days, as specified, and would exempt a defendant from liability for minimum statutory damages with respect to a structure or area inspected by a certified access specialist for a period of 120 days if specified conditions are met. This bill is currently in the Assembly Appropriations Committee.
Prior Legislation:
SB 1186 (Steinberg and Dutton, Chapter 383, Statutes of 2012) reduced statutory damages and provided litigation protections for specified defendants who timely correct construction-related accessibility violations of the Unruh Civil Rights Act. That bill also banned prelitigation “demands for money” and created rules for demand letters and complaints in claims involving construction-related accessibility violations.
AB 2282 (Berryhill, 2012) would have authorized an aggrieved person to bring a disability access suit only if: (1) the person has suffered an injury in fact; (2) the injury in fact was caused by the violation; and (3) the violation is redressable, was held under submission in the Senate Appropriations Committee.
SB 1163 (Walters, 2012) would have established notice requirements for an aggrieved party to follow before he or she can bring a disability access suit and give the business owner a 120-day time period to remedy the violation. If the property owner cures the violation, the aggrieved party cannot receive any damages or attorney’s fees, except for special damages. This bill failed passage in this Committee.
AB 1878 (Gaines, 2011) which is substantially similar to SB 1163 but applies to “microbusinesses,” defined by the bill, failed passage in the Assembly Judiciary Committee.
SB 783 (Dutton, 2011), which was identical to SB 1163, failed passage in this Committee.
SB 384 (Evans, Ch. 419, Stats. 2011) clarified that attorneys who file complaints or send demand letters related to disability access violations must provide a written notice of legal rights and obligations whether or not the attorney intends to file an action in state or federal court.
SB 209 (Corbett & Harman, Ch. 569, Stats. 2009) required a CASp inspection report, to remain confidential rather than be under seal and subject to protective order.
SB 1608 (Corbett et al., Ch. 549, Stats. 2008) See Background; Comment 6.
SB 1766 (McClintock, 2008) See Background.
AB 2533 (Keene, 2008) See Background.
SB 855 (Poochigian, 2005) See Background.
Prior Vote: Not relevant to current version of this bill.
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AB 1521
Page 2
Date of Hearing: May 20, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
AB 1521
(Committee on Judiciary) – As Amended May 6, 2015
Policy Committee: |
Judiciary |
Vote: |
10 - 0 |
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Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
Provides additional information and legal resources to small business owners who may not realize how to minimize their liability for ADA violations or respond to a lawsuit filed against them. Specifically, this bill:
Revises the notice of rights and responsibilities, which is required by current law to be provided to a defendant contemporaneously with service of a complaint or demand letter alleging a construction-related accessibility claim or noncompliance, to advise the defendant that:
If found liable by a court, they may be able to reduce the amount of money the court orders them to pay in damages, and that, if they are a small business owner and correct all of the construction-related violations within 30 days of being served, they may qualify for reduced damages. The notice is to also advise the defendant that, if they believe they qualify for reduced damages, they may wish to consult an attorney to obtain legal advice, or contact the California Commission on Disability Access (CCDA) for additional information about the rights and obligations of business owners.
If they are a commercial tenant, they may not be responsible for ensuring that some or all portions of the premises they lease, such as common areas and parking lots, are accessible because those areas may be the responsibility of their landlord, and that they may want to refer to their lease agreement, or consult with the landlord or an attorney, to determine if the landlord is responsible under the terms of the lease for maintaining and improving some or all of the leased areas.
Requires the Judicial Council, by July 1, 2016, to revise the notice per (1) and to develop a form to facilitate a defendant's response to an ADA-related complaint, as specified.
FISCAL EFFECT:
Minor and absorbable costs to the Judicial Council to revise the notice and develop the required form.
COMMENTS:
Background and Purpose. Information reported to the CCDA indicates that a significant portion of construction-related accessibility lawsuits are being filed by a small number of law firms in California. According to the Commission, between September 2012 and October 2014, 5,392 complaints (including demand letters) were filed (in both state and federal courts). More than half (54%) of the complaints were filed by just two law firms, and 46% of all complaints were filed by just 14 parties.
This bill is intended to help combat the problem of serial ADA litigation. Early and easy settlement of claims by business owners is a problem because it fuels the unethical attorneys whose business model is an easy settlement. Business owners, especially small businesses that are tenants in larger shopping centers, may not be liable for the damages they think they are exposed to. Landlords are responsible for maintaining parking lots in these complexes and are more likely to have the resources and wherewithal to litigate or settle claims and to bring the property into compliance.
The updated notice required by this bill will provide defendants with more information about their rights and responsibilities. The new answer form will discourage quick settlement of inflated claims and exaggerated settlement offers by giving the defendant business not only a way to respond to the complaint (and engage in effective negotiations with the plaintiff), but also information about how to limit his or her liability. This new form will be especially helpful to small businesses with limited financial resources because those businesses may not be able to afford to hire an attorney.
Analysis Prepared by: Chuck Nicol / APPR. / (916) 319-2081
AB 1521
Page 10
Date of Hearing: May 12, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1521 (
Committee on Judiciary) – As Amended May 6, 2015
SUBJECT: DISABILITY ACCESS: CONSTRUCTION-RELATED ACCESSIBILITY CLAIMS
KEY ISSUE: SHOULD A BUSINESS OWNER WHO IS SUED FOR VIOLATING A CONSTRUCTION-RELATED ACCESSIBILITY STANDARD RECEIVE MORE INFORMATION AND RESOURCES ABOUT OPTIONS FOR RESPONDING TO THE LAWSUIT IN ORDER TO HELP REDUCE THE BUSINESS OWNER’S POTENTIAL FINANCIAL LIABILITY FOR SUCH A VIOLATION AND TO ANSWER THE LAWSUIT, IF NECESSARY, WITHOUT THE ASSISTANCE OF AN ATTORNEY?
SYNOPSIS
Like other civil rights statutes that prohibit discrimination in businesses open to the public, the statutory scheme for enforcement of disability access laws rests on voluntary compliance and individual legal actions. There is no governmental entity charged with administrative or judicial enforcement of these obligations. Under the federal Americans with Disabilities Act (ADA), a business that constitutes a place of public accommodation (e.g., many places of lodging, entertainment, recreation, restaurants, bars, theaters, stores, health clubs, etc.) is prohibited from discriminating on the basis of disability if its operations affect interstate commerce. Public accommodations in California are required to comply with not only the ADA, but also with the state’s Unruh Act, which incorporates the ADA into its provisions and makes a violation of the ADA punishable as a violation of Unruh. All violations of Unruh are subject to statutory damages of at least four thousand dollars per violation, except in some cases where lower damages (a minimum of one thousand or two thousand dollars, depending on the circumstances of the case) apply.
Current law requires an attorney, when serving a demand letter or a complaint that alleges a construction-related accessibility claim or noncompliance, to provide the defendant with a written notice with each demand letter or complaint. The notice includes information about the defendant’s rights and obligations, including the right of a qualified defendant to request a stay and an early evaluation conference regarding the allegations in the complaint, but does not include information about how the defendant may be able to minimize his or her financial exposure for an ADA/Unruh Act violation. Also, many small business owners and unsophisticated defendants may want to contest the allegations in the complaint, but may not have the resources to hire an attorney or the tools or information to respond to the complaint without hiring an attorney. This non-controversial bill will update the mandatory notice provided to defendants to provide more helpful information to the defendant. It also requires the Judicial Council to develop a new form allowing a defendant to answer a complaint alleging the violation of a construction-related accessibility standard. Assuming this bill passes this Committee, it will be referred to the Assembly Appropriations Committee.
SUMMARY: Provides additional information and legal resources to small business owners who may not realize how to minimize their liability for ADA violations or respond to a lawsuit filed against them. Specifically, this bill:
Revises the notice of rights and responsibilities that is required by current law to be provided to a defendant contemporaneously with service of a complaint or demand letter to advise the defendant that “If you are found to be liable by a court, you may be able to reduce the amount of money the court orders you to pay in damages. If you are a small business owner and correct all of the construction-related violations that are the basis of the complaint against you within 30 days of being served with the complaint, you may qualify for reduced damages. If you believe you qualify for reduced damages, you may wish to consult an attorney to obtain legal advice, or contact the California Commission on Disability Access (CCDA) for additional information about the rights and obligations of business owners” and requires the Judicial Council to revise the notice by July 1, 2016.
Revises the notice of rights and responsibilities that is required by current law to be provided to a defendant contemporaneously with service of a complaint or demand letter to advise the defendant that “If you are a commercial tenant, you may not be responsible for ensuring that some or all portions of the premises you lease for your business (including common areas, such as parking lots), are accessible to the public because those areas may be the responsibility of your landlord. You may want to refer to your lease agreement, or consult with your landlord or an attorney, to determine if your landlord is responsible under the terms of your lease for maintaining and improving some or all of the areas you lease to operate your business” and requires the Judicial Council to revise the notice by July 1, 2016.
Requires the Judicial Council, by July 1, 2016, to develop a form to answer the complaint which, among other things, is required to satisfy the following requirements:
Be written in plain language;
Allow the defendant to state any relevant information affecting the defendant’s liability or damages;
Allow the defendant to make specific denials of the allegations in the complaint, including whether the plaintiff has demonstrated that he or she was denied full and equal access to the place of public accommodation on a particular occasion pursuant to Section 55.56;
Allow the defendant to state potential affirmative defenses.
Requires a plaintiff’s attorney to provide a defendant with a copy of the answer form created by the Judicial Council when serving the defendant with a complaint or demand letter (and the notice of rights and responsibilities, as required by existing law).
EXISTING LAW:
Pursuant to federal law, under the Americans with Disabilities Act (ADA), provides that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, or leases to, or operates a place of public accommodation. (42 U.S.C. 12182.)
Pursuant to the state Unruh Civil Rights Act (Unruh), provides that all persons, regardless of sex, race, color, religion, ancestry, national origin, disability or medical condition, are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. A violation of the ADA also constitutes a violation of Unruh. (Civil Code Section 51. All further statutory references are to the California Civil Code, unless otherwise indicated.)
Provides that a violation of Unruh subjects a person to actual damages incurred by an injured party, treble actual damages but not less than $4,000, and any attorney’s fees as the court may determine to be proper. (Section 51 et seq.)
Provides that a violation of Unruh subjects a person to injunctive and actual damages – plus treble actual damages but not less than $1,000, and attorney’s fees as the court deems proper. (Section 54.3.)
Provides for a California Commission on Disability Access (the Commission), an independent state agency composed of 19 members, with responsibility for monitoring disability access compliance in California and authority to recommend necessary changes to the Legislature in order to facilitate implementation of state and federal laws on disability access. (Government Code Section 8299 et seq.)
Requires an attorney, when serving a demand letter or a complaint on a defendant alleging a construction-related accessibility claim or noncompliance, to provide a written advisory with each demand letter or complaint, as defined. The written advisory shall include information about the defendant’s rights and obligations, including the right of a qualified defendant to request a stay and an early evaluation conference regarding the allegations in the complaint. The written advisory is only required from any attorney, and not from a pro per plaintiff. (Section 55.3.)
Requires an attorney alleging the construction-related accessibility claim or noncompliance to state facts sufficient to allow the defendant to identify the basis for the claim. (Section 55.31.)
Provides that upon being served with a complaint asserting a construction-related accessibility claim, a defendant may move for a court stay and early evaluation conference if the defendant is any of the following: (A) Until January 1, 2018, a defendant whose site had new construction or improvement between January 1, 2008, and January 1, 2016 and was approved pursuant to the local building permit and inspection process; (B) a defendant whose site had new construction or improvement that was approved by a local public building department inspector who is a certified access specialist (CASp); or (C) a defendant who is a small business. The stay to the construction-related accessibility claim, as provided, may be provided for 90-days unless the plaintiff has obtained temporary injunctive relief. (Section 55.54.)
Authorizes a defendant who does not qualify for an early evaluation conference (EEC) pursuant to these provisions, or who forgoes those provisions, to request a mandatory evaluation conference, as specified, and authorizes a plaintiff to make that request if the defendant does not make that request. (Section 55.54.)
Specifies that a court shall lift the stay when the defendant has failed to file and serve the CASp inspection report when required and also did not produce the report at the EEC, unless good cause for the failure is shown. (Section 55.54.)
Specifies that a court may lift the stay at the conclusion of the EEC upon a showing of good cause by the plaintiff. (Section 55.54.)
Specifies the court’s authority to schedule additional conferences or to extend the stay for no more than an additional 90 days, upon a showing of good cause. (Section 55.54.)
Provides that the stay and early evaluation conference shall not be deemed to make any inspection report or opinion of a CASp binding on the court or to abrogate the court’s authority to make appropriate findings of fact and law. (Section 55.54.)
Provides that the stay and early evaluation conference shall not be construed to invalidate or limit any California construction-related accessibility standard that provides greater or equal protection for the rights of persons with disabilities than is afforded by the ADA and the federal regulations adopted pursuant to that act. (Section 55.54.)
Provides that notwithstanding the requirement that offers of compromise are privileged and protected under Evidence Code Section 1152, the court may consider, along with other relevant information, settlement offers made and rejected by the parties, in determining an award of reasonable attorney’s fees and recoverable costs in any construction-related accessibility claim. (Section 55.55.)
Provides that statutory damages may be recovered in a construction-related accessibility claim only if a violation or violations of one or more construction-related accessibility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion. Existing law specifies that a plaintiff is denied full and equal access only if he or she personally encountered the violation on a particular occasion or was deterred from accessing the public accommodation on a particular occasion. (Section 55.56.)
Requires the court, in assessing liability in any action alleging multiple claims for the same construction-related accessibility violation on different particular occasions, to consider the reasonableness of the plaintiff’s conduct in light of the plaintiff’s obligation, if any, to mitigate damages. (Section 55.56.)
Reduces a defendant’s minimum liability for statutory damages in a construction-related accessibility claim against a place of public accommodation in the following circumstances:
To a minimum of $1,000 for each unintentional offense if (i) the defendant has corrected all construction-related violations that are the basis of the claim within 60 days of being served with the complaint, and (ii) the structure was either CASp –inspected, or was new construction approved in the building and permitting process, prior to the complaint being filed.
To a minimum of $2,000 for each unintentional offense if (i) the defendant has corrected all construction-related violations that are the basis of the claim within 30 days of being served with the complaint and (ii) the defendant is a small business that has 25 or fewer employees and annual gross receipts of less than three million five hundred thousand dollars ($3,500,000) averaged over the past three years. (Section 55.56.)
Separately defines “small business” for purposes of state contracting as an independently owned and operated business that is not dominant in its field of operation, the principal office of which is located in California, the officers of which are domiciled in California, and which, together with affiliates, has 100 or fewer employees, and average annual gross receipts of ten million dollars ($10,000,000) or less over the previous three years, or is a manufacturer, as defined in subdivision (c), with 100 or fewer employees (and regardless of income). (Government Code Section 14837(d)(1).)
Defines “qualified defendant” as “a defendant in an action that includes a construction-related accessibility claim that is asserted against a place of public accommodation that met the requirements of “meets applicable standards” or “inspected by a CASp” prior to the date the defendant was served with the summons and complaint in that action.” (Section 55.52(a)(8).)
FISCAL EFFECT:
As currently in print this bill is keyed fiscal.
COMMENTS:
Under the federal Americans with Disabilities Act (ADA), a business that constitutes a place of public accommodation (e.g., many places of lodging, entertainment, recreation, restaurants, bars, theaters, stores, health clubs, etc.) is prohibited from discriminating on the basis of disability if its operations affect interstate commerce. Prohibited discrimination can take a number of forms – e.g., denial of participation in the facility, or a service, benefit, or good of the business; denial of equal participation in a good, service, or facility; or provision of a different or separate facility, service or good (unless necessary to provide services and the like that are as effective as that provided to others). Government facilities are also covered by the access obligations of the ADA.
Public accommodations in California are required to comply with not only the ADA, but also with the state’s Unruh Act, which incorporates the ADA into its provisions and makes a violation of the ADA punishable as a violation of Unruh. (Section 51.) All violations of Unruh are subject to statutory damages of at least four thousand dollars per violation, except some cases where the violation is based on a construction-related accessibility claim, in which case lower damages (a minimum of one thousand or two thousand dollars, depending on the circumstances of the case) apply.
This bill furthers recent bipartisan disability access reform legislation that was the result of negotiated collaboration and compromise which provided pre-litigation relief to small businesses. In response to complaints that small businesses were the victims of predatory lawsuits alleging ADA violations, a bipartisan and bicameral effort with disability rights organizations and business advocates over a period of years ultimately lead to the adoption of SB 1608 (Corbett and Harman) in 2008. It was the product of extended and careful consideration by thoughtful legislators and input and support from members of the disability and business communities including Disability Rights California, the California Chamber of Commerce, the California Foundation for Independent Living Centers, California Restaurant Association, Business Properties Association, California Hotel Association, and several others.
SB 1608 enacted several reforms to increase voluntary compliance with state and federal laws requiring access to the disabled in any place of public accommodation. It established incentives for compliance and protection from litigation by responsible businesses, including a process by which businesses, if sued for violation of accessibility standards, could obtain a temporary stay of any litigation along with an in-person early evaluation conference with the court, attended by persons with authority to resolve the dispute between the parties, for the purpose of deterring frivolous cases and evaluating prospects for early settlement. Moreover, it clarified the standards for awarding damages and attorney's fees with respect to a claim alleging a violation of construction-related accessibility standards. It also required an attorney, when serving a written demand for money or a complaint on a defendant, to include a written advisory to the defendant of the defendant’s rights and obligations. In addition, the bill required architects to complete coursework regarding disability access requirements and imposed continuing education requirements on local building officials relating to disability access requirements.
Importantly, SB 1608 also established the California Commission on Disability Access (Commission) “to develop[] recommendations that will enable persons with disabilities to exercise their right to full and equal access to public facilities, and that will facilitate business compliance with the laws and regulations to avoid unnecessary litigation.” (Government Code section 8299.) Among other things, the Commission was required to conduct studies and make reports to the Legislature. The Commission is responsible for monitoring compliance, reporting and making recommendations to the Legislature. Despite initial funding difficulties and delays, the Commission now has staff, has been meeting regularly, and is carrying out its responsibilities.
Four years after SB 1608 was signed into law, Senate Bill 1186 enacted a number of additional reforms to the laws governing construction-related accessibility claims. According to the Senate Judiciary Committee’s analysis of SB 1186, Senator and President Pro Tempore Darrell Steinberg, who was the joint author of the bill, described it as follows [emphasis added]:
SB 1186 is a compromise that applies a common sense approach to resolve difficult issues. It maintains the hard-fought civil rights of the disabled community while helping to protect California businesses from predatory demand for money letters and lawsuits. Support for important laws like the Unruh Act and the Americans with Disabilities Act are weakened when those laws are abused for personal gain. This measure bans the unscrupulous practice of ‘demand for money’ letters, stops the stacking of claims based on alleged repeat violations to force a business into a quick settlement, while encouraging businesses to fix their violations to comply with the law. Thus, SB 1186 provides some relief to businesses who show good faith in trying to follow the law and are willing to correct the violation, which ultimately promotes compliance and brings greater access to the disabled community.
Senator Dutton, the Senate Minority Leader and joint author of SB 1186, described the bill as:
. . . the culmination of months of hard work with staff and all the various stakeholders in the community. [The bill] will not only provide a reasonable amount of time for small businesses to fix minor infractions, but will also help expand the California Access Specialist Program in California and provide any more tools for businesses to comply with this vital civil rights law.
The policy goal of SB 1186, according to the authors, was “to incentivize property owners to correct their violations, as opposed to settling the case and doing nothing, by reducing the minimum statutory damages and potential attorney’s fees award to the plaintiff when they correct the violation.”
Finally, SB 1186 gave defendants the option to request an early evaluation conference (EEC) and an immediate and mandatory stay of the proceedings, similar to the litigation protections now given to a qualified defendant who hired a CASp to inspect the property and issue a report on its compliance status. A mandatory stay would freeze the litigation at the point of the court order, which arguably freezes the plaintiff’s attorney’s fees at that point. An EEC could be useful to end a case at an early stage, particularly when the defendant has corrected the alleged violation.
This bill, like these earlier bipartisan measures, seeks to encourage small business owners to bring their properties into compliance with the ADA and Unruh. Specifically, it provides business owners with information about the benefits of obtaining CASp inspections, including their ability to request a stay of proceedings in order to obtain a CASp inspection and reduce the damages to which they are exposed.
Recent and objective evidence about the magnitude of ADA/Unruh litigation. California has approximately 3.3 million small businesses. According to data compiled by the Commission, from January 2014 until January 2015, 3,468 demand letters and complaints were filed in the state. This means that less than one percent of small businesses (and a far smaller percentage of all businesses) were sued in 2014 for violations of construction-related accessibility standards.
Nevertheless, some of the information reported to the Commission is alarming in terms of the number and frequency of construction-related accessibility lawsuits being filed by a small number of law firms in California. According to the Commission, between September 2012 and October 2014, 5,392 complaints (including demand letters) were filed (in both state and federal courts). More than half (54%) of the complaints were filed by just two law firms. Forty-six percent of all complaints were filed by just 14 parties.
However, data from the Commission shows that more attorneys are choosing to file lawsuits in federal court, perhaps to avoid complying with California-specific requirements, such as sending demand letters to the Commission and the State Bar. Interestingly, the Commission reports that the state’s total share of complaints and demand letters has gone down. Between September 2012 and December 2013, state complaints/demand letters represented 68% of all the complaints/demand letters that the Commission received. However, between January 2014 and October 2014, state complaints/demand letters represented only 46% of all complaints/demand letters that the Commission received.
What can be done or should be done about (the small number of) attorneys who file large numbers of Unruh Act-ADA lawsuits? The Ninth Circuit Court of Appeals addressed this issue in Molski v. Evergreen Dynasty Corp. (9th Cir. 2008) 521 F.3d 1215. Molski was paralyzed from the chest down, needed a wheelchair to get around, and filed about 400 lawsuits in the federal courts within the districts in California. (Id. at p. 1051.) Upon motion of the defendant businesses (including the named defendant, a restaurant) the district court declared Molski a vexatious litigant and granted the defendants' request for a pre-filing order (requiring court approval before Molski could file additional lawsuits). (Ibid.) The Ninth Circuit acknowledged that “pre-filing orders are an extreme remedy that should rarely be used” and that courts “should not enter pre-filing orders with undue haste because such sanctions can tread on a litigant's due process right of access to the courts.” (Id. at p. 1057.) Nevertheless, the Ninth Circuit upheld the order, finding that it was within the district court’s power, “In light of the district court's finding that Molski did not suffer the injuries he claimed . . . to conclude that the large number of complaints filed by Molski containing false or exaggerated allegations of injury were vexatious” and the pre-filing requirement could be issued. (Id. at p. 1059.)
Also, there is no evidence that these lawsuits are “frivolous.” The Merriam-Webster Dictionary defines “frivolous” as “of little weight or importance,” or “having no sound basis (as in fact or law) <a frivolous lawsuit>.” In other words, a lawsuit alleging a violation of the Unruh Act because of a denial of access would only be “frivolous” if it had no basis in the law (i.e. it did not state an actual violation). In fact, there is no evidence that the complaints which are filed are without merit. According to data collected by the California Commission on Disability Access, most complaints identify multiple access violations. For example, of the cases filed in July 2014, most complaints identified multiple or significant single violations, such as missing grab bars. Only two out of 201 complaints identified a single issue, such as a soap or seat cover dispenser being too high. Also, the most commonly cited violations involve parking spaces, areas over which commercial landlords have responsibility.
Taken together, the information about the high number of complaints being filed by a very small number of plaintiffs AND the fact that courts now have the power and authority to limit the ability of vexatious litigants to file serial Unruh-ADA complaints, it seems clear that the rights of the vulnerable should not be sacrificed because of the despicable conduct of a few bad actors. Also, courts clearly have tools to limit vexatious litigation, but they will never be able to use those tools as long as businesses settle, rather than litigate, complaints.
This bill will help combat the problem of serial Unruh-ADA litigation in two ways. First of all, early and easy settlement by business owners is a problem because it fuels the unethical attorneys whose business model is easy settlement. Business owners, especially small businesses that are tenants in larger shopping centers, may not be liable for the damages they think they are exposed to. Landlords are responsible for maintaining parking lots in these complexes and are more likely to have the resources and wherewithal to litigate or settle claims and to bring the property into compliance. Second, the availability of a new answer form will allow the business owner to respond to the lawsuit and, in cases where it’s necessary or appropriate, to do so without hiring an attorney.
This bill would improve information available to businesses about how and why they may qualify for the reduced statutory damages and may not be responsible for ensuring that common areas are accessible. Current law provides reduced damages (a minimum of $2,000 for each unintentional offense) if the defendant has corrected all construction-related violations that are the basis of the claim within 30 days of being served with the complaint and the defendant is a small business that has 25 or fewer employees and annual gross receipts of less than three million five hundred thousand dollars ($3,500,000) averaged over the past three years. (Section 55.56.)
All stakeholders agree that the vast majority of these cases never get to the point where a court makes any determination of damages. In fact, one of the few things about which all sides agree is that the vast majority of these cases settle out of court and never even reach the stage of a settlement conference. The only possible solution is to find ways to increase compliance with accessibility standards, educate business owners about their rights and responsibilities, and give small businesses and pro per defendants additional legal tools to protect themselves. This bill provides business owners with a new legal tool and additional information about their rights.
This bill may slow the rate and number of lawsuits filed by the small number of attorneys who file large numbers of Unruh Act-ADA lawsuits. It is clear that a very small number of law firms files a very large and disproportionate share of Unruh-ADA lawsuits in California. At the same time, courts have tools to discourage vexatious litigation and recent reforms have not been given adequate time to be tested. The Legislature should not further sacrifice the rights of the disabled to deal with this problem, the best course of action would appear to be public policy proposals that do more of the following: (1) increase compliance by public accommodations with construction-related accessibility standards; (2) increase information about rights and responsibilities that businesses have under Unruh; (3) discourage settlements by businesses of cases that either do not have merit or involve vexatious litigants; and (4) encourage defendants to seek court orders against vexatious litigants like the one issued against Molski.
This bill will further several of these goals. An updated notice will provide defendants with more information about their rights and responsibilities. The new answer form will discourage quick settlement of inflated claims and exaggerated settlement offers by giving the defendant business not only a way to respond to the complaint (and engage in effective negotiations with the plaintiff), but also information about how to limit his or her liability. This new form will be especially helpful to small businesses with limited financial resources because those businesses may not be able to afford to hire an attorney.
Similar pending legislation. AB 54 (Olsen) - provides a tax credit under the Personal Income Tax Law and the Corporation Tax Law to any taxpayer who obtains a certified access specialist inspection. This bill is currently in Assembly Revenue and Taxation.
AB 1230 (Gomez) - establishes, among other things, the California Americans with Disabilities Act Small Business Compliance Finance Act, which would provide loans, funded in part by bond issuances, to assist small businesses finance the costs of projects that alter or retrofit existing small business facilities to comply with the federal American with Disabilities Act. This bill is currently in Assembly Appropriations.
AB 1342 (Steinorth) - provides, among other things, additional revenue to the California Commission on Disability Access. This bill is currently in Assembly Appropriations.
AB 1468 (Baker) - provides, among other things, that a public entity’s possession of a close out letter from the State Architect certifying that the buildings, facilities, and other places meet the applicable construction-related accessibility standards of the federal Americans with Disabilities Act, serves as presumptive evidence of compliance with the federal Americans with Disabilities Act. This bill is currently in this Committee as a two-year bill.
SB 67 (Galgiani) - among other things, exempts a small business from statutory damage liability in connection with a construction-related accessibility claim and extends the period for correcting construction-related violations that are the basis of a claim from 60 days to 120 days of being served with the complaint, for purposes of reducing a defendant’s minimum statutory damage liability to $1,000. This bill is currently in Senate Judiciary.
SB 251 (Roth) - among other things, provides that a business is not liable for violating a construction-related liability standard if the business is an inspected CASp site and the violation is corrected within 90 days of receiving the above-described written inspection report from a CASp. This bill is currently in Senate Judiciary.
REGISTERED SUPPORT / OPPOSITION:
Support
American Civil Liberties Union (ACLU) of California
Californians for Disability Rights, Inc.
Consumer Attorneys of California
Disability Rights California
Opposition
None on file
Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334
Discussed in Hearing
2MIN
Assembly Floor
4MIN
Senate Floor
Senate Standing Committee on Judiciary
1MIN
Assembly Standing Committee on Judiciary
Bill Author
Bill Co-Author(s):