Existing state law, the Unruh Civil Rights Act, and federal law, the Americans with Disabilities Act of 1990, prohibit discrimination on the basis of various specified personal characteristics, including disability.

Existing law, the Construction-Related Accessibility Standards Compliance Act, 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. Existing law also requires an attorney who sends or serves a complaint alleging that an internet website is not accessible to satisfy specified requirements, including, among other things, sending a copy of the complaint and submitting information about the complaint to the California Commission on Disability Access.

This bill would require an attorney, with each demand letter or complaint alleging an internet website-related accessibility claim, to provide the defendant with a copy of a written advisory notice pertaining to disability access laws, as specified. The bill would become operative only if AB 1757 of the 202324 Regular Session is enacted and takes effect on or before January 1, 2025.

Existing state law, the Unruh Civil Rights Act, and federal law, the Americans with Disabilities Act of 1990, prohibit discrimination on the basis of various specified personal characteristics, including disability.

Existing law, the Construction-Related Accessibility Standards Compliance Act, 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. Existing law also requires an attorney who sends or serves a complaint alleging that an internet website is not accessible to satisfy specified requirements, including, among other things, sending a copy of the complaint and submitting information about the complaint to the California Commission on Disability Access.

This bill would require an attorney, with each demand letter or complaint alleging an internet website-related accessibility claim, to provide the defendant with a copy of a written advisory notice pertaining to disability access laws, as specified. The bill would become operative only if AB 1757 of the 202324 Regular Session is enacted and takes effect on or before January 1, 2025.

Existing state law, the Unruh Civil Rights Act, and federal law, the Americans with Disabilities Act of 1990, prohibit discrimination on the basis of various specified personal characteristics, including disability.

Existing law, the Construction-Related Accessibility Standards Compliance Act, 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. Existing law also requires an attorney who sends or serves a complaint alleging that an internet website is not accessible to satisfy specified requirements, including, among other things, sending a copy of the complaint and submitting information about the complaint to the California Commission on Disability Access.

This bill would require an attorney, with each demand letter or complaint alleging an internet website-related accessibility claim, to provide the defendant with a copy of a written advisory notice pertaining to disability access laws, as specified. The bill would become operative only if AB 1757 of the 202324 Regular Session is enacted and takes effect on or before January 1, 2024. 2025.

Existing state law, the Unruh Civil Rights Act, and federal law, the Americans with Disabilities Act of 1990, prohibit discrimination on the basis of various specified personal characteristics, including disability.

Existing law, the Construction-Related Accessibility Standards Compliance Act, 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. Existing law also requires an attorney who sends or serves a complaint alleging that an internet website is not accessible to satisfy specified requirements, including, among other things, sending a copy of the complaint and submitting information about the complaint to the California Commission on Disability Access.

This bill would require an attorney, with each demand letter or complaint alleging an internet website-related accessibility claim, to provide the defendant with a copy of a written advisory notice pertaining to disability access laws, as specified. The bill would become operative only if AB 1757 of the 202324 Regular Session is enacted and takes effect on or before January 1, 2024.

Existing state law, the Unruh Civil Rights Act, and federal law, the Americans with Disabilities Act of 1990, prohibit discrimination on the basis of various specified personal characteristics, including disability.

Existing law, the Construction-Related Accessibility Standards Compliance Act, 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. Existing law also requires an attorney who sends or serves a complaint alleging that an internet website is not accessible to satisfy specified requirements, including, among other things, sending a copy of the complaint and submitting information about the complaint to the California Commission on Disability Access.

This bill would require an attorney, with each demand letter or complaint alleging an internet website-related accessibility claim, to provide the defendant with a copy of a written advisory notice pertaining to disability access laws, as specified. The bill would become operative only if AB 1757 of the 202324 Regular Session is enacted and takes effect on or before January 1, 2024.

Existing state law, the Unruh Civil Rights Act, and federal law, the Americans with Disabilities Act of 1990, prohibit discrimination on the basis of various specified personal characteristics, including disability.

Existing law, the Construction-Related Accessibility Standards Compliance Act, 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. Existing law also requires an attorney who sends or serves a complaint alleging that an internet website is not accessible to satisfy specified requirements, including, among other things, sending a copy of the complaint and submitting information about the complaint to the California Commission on Disability Access.

This bill would require an attorney, with each demand letter or complaint alleging an internet website-related accessibility claim, to provide the defendant with a copy of a written advisory notice pertaining to disability access laws, as specified. The bill would become operative only if AB 950 1757 of the 202324 Regular Session is enacted and takes effect on or before January 1, 2024.

Existing state law, the Unruh Civil Rights Act, commonly referred to as the Unruh Act, and federal law, the Americans with Disabilities Act of 1990, prohibit discrimination on the basis of various specified personal characteristics, including disability. Existing law prescribes remedies for violations of these prohibitions, which include actual damages, any amount determined by a jury or a court up to a maximum of 3 times the amount of actual damages but in no case less than $4,000, and attorneys fees to be determined by the court.

Existing law, the Construction-Related Accessibility Standards Compliance Act, 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. Existing law authorizes a reduction in potential statutory damages for a small business, as defined, for a construction-related accessibility claim. Existing law also requires an attorney who sends or serves a complaint alleging that an internet website is not accessible to satisfy specified requirements, including, among other things, sending a copy of the complaint and submitting information about the complaint to the California Commission on Disability Access.

This bill would require an attorney, with each demand letter or complaint alleging an internet website-related accessibility claim, to provide the small business defendant, as defined, defendant with a copy of a written advisory notice pertaining to disability access laws, as specified. If the small business defendant corrects the violation within 60 days of receiving the notice, the bill would reduce the maximum statutory damages to $25. The bill would become operative only if AB 950 of the 202324 Regular Session is enacted and takes effect on or before January 1, 2024.

Existing state law, the Unruh Civil Rights Act, commonly referred to as the Unruh Act, and federal law, Americans with Disabilities Act of 1990, prohibit discrimination on the basis of various specified personal characteristics, including disability. Existing law prescribes remedies for violations of these prohibitions, which include actual damages, any amount determined by a jury or a court up to a maximum of 3 times the amount of actual damages but in no case less than $4,000, and attorneys fees to be determined by the court.

Existing law, the Construction-Related Accessibility Standards Compliance Act, 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. Existing law authorizes a reduction in potential statutory damages for a small business, as defined, for a construction-related accessibility claim. Existing law also requires an attorney who sends or serves a complaint alleging that an internet website is not accessible to satisfy specified requirements, including, among other things, sending a copy of the complaint and submitting information about the complaint to the California Commission on Disability Access.

This bill would require an attorney, with each demand letter or complaint alleging an internet website-related accessibility claim, to provide the small business defendant, as defined, with a copy of a written advisory notice pertaining to disability access laws, as specified. If the small business defendant corrects the violation within 60 days of receiving the notice, the bill would reduce the maximum statutory damages to $25.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1404

Author:(Wendy Carrillo)

As Amended Ver:September 8, 2023

Majority vote

SUMMARY

Requires that when a civil complaint, alleging a website accessibility violation, is served on a business, that the business also receives a notice informing the business of important legal rights and obligations relating to the accessibility of internet websites, including the fact that the business may not be liable for any damages if its website complies with a specified website accessibility standard; and makes this notice requirement contingent upon the enactment of another bill (AB 1757 (Judiciary Committee) of the current legislative session) that establishes the website accessibility standard.

Major Provisions

1. Defines the following terms for purposes of this bill:
2. "Complaint" has the same meaning as a complaint alleging that an internet website is not accessible, as described in Civil Code Section (CIV) 55.565(a).
3. "Demand letter" means a prelitigation written document that is provided to a business alleging an internet website-related accessibility claim, whether or not the attorney intends to file a complaint, or eventually files a complaint, in state court.
4. "Internet website-related accessibility claim" means a civil claim in a civil action based wholly or in part on an alleged violation of any internet website-related accessibility standard, including, but not limited to, a claim brought under CIV 51, 52, 54.1, 54.3, or 55.
5. "Internet website-related accessibility standard" has the same meaning as provided in CIV 55.565(e)(3), that is proposed to be established by AB 1757 of the current legislative session as follows:

"Internet website-related accessibility standard" means the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA standard for the accessibility of internet websites established by the World Wide Web Consortium (W3C) Accessibility Guidelines Working Group on June 5, 2018, or the accessibility standards for Section 508 of the federal Rehabilitation Act of 1973 (29 United States Code Sec. 794d) in Part 1194 of Title 36 of the Code of Federal Regulations. To the extent that there is an overlap between the applicable standards for internet websites under WCAG 2.1 and standards for information or communication technology under Section 508 of the federal Rehabilitation Act of 1973, the more recent WCAG 2.1 standard shall apply. Any subsequent more stringent update, revision, or replacement to either standard adopted by any final rule of the United States Access Board shall apply to this section.

1. Requires an attorney to provide a copy of the written advisory notice as specified in 3), below, below, with each demand letter or complaint sent to or served upon a defendant alleging an internet website-related accessibility claim. Until the Judicial Council adopts this notice, the attorney shall provide a written statement that replicates the advisory notice described in 3), below.
2. Requires, on or before January 1, 2026, the Judicial Council to adopt a written advisory notice that shall be used by a plaintiff’s attorney to comply with the requirements of the bill. The advisory notice shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the advisory notice is available in additional languages, and on the Judicial Council’s internet website where the different versions of the advisory notice are located.
3. Clarifies that the requirement in 2), above, does not apply to an action brought by the Attorney General or any district attorney, city attorney, or county counsel.
4. Makes the bill applicable only to claims filed on or after January 1, 2025.
5. Makes enactment of the bill contingent upon the enactment of AB 1757 of the current legislative session. Should AB 1757 not be enacted by January 1, 2025, the bill would not take effect.

Senate Amendments

1. Extend the time period for Judicial Council to update the notice proposed by the bill from January 1, 2025 to January 1, 2026.
2. Make the bill applicable to claims filed on or after January 1, 2025 (rather than January 1, 2024).
3. Make the bill contingent upon the enactment of AB 1757 of the current legislative session (rather than AB 950).

COMMENTS

As with construction-related accessibility claims, a few litigious attorneys are abusing state and federal accessibility laws, including the Americans with Disabilities Act (ADA), and the state's Unruh Civil Rights Act (Unruh), to sue small businesses that may not understand either their obligations to make their internet websites accessible to the public, how to make them accessible, and how and why they may not be liable for paying damages if they took their cases to trial. This bill seeks to address this problem by providing more information to businesses that are sued because their websites allegedly are not accessible to all users and therefore violate state and federal accessibility laws.

U.S. Department of Justice Regulations Regarding Website Accessibility, Including Proposed (and Later Abandoned) Specific Accessibility Compliance Standards. The United States Department of Justice (DOJ) is the agency responsible for enforcing federal civil rights laws, including the ADA. In that capacity, DOJ has promulgated regulations and technical advice to businesses that are public places and places of public accommodation about how to comply with the ADA. For example, DOJ has adopted regulations to define "auxiliary aids and services" to include "accessible electronic and information technology" or "other effective methods of making visually delivered materials available to individuals who are blind or have low vision" in 28 CFR 36.303(b)(2). (Robles v. Domino's Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 904-905.) And DOJ has repeatedly affirmed the application of the ADA to the websites and apps of public accommodations. (See 75 Federal Regulation 43460-01, 43464 (July 26, 2010); Robles, supra, 913 F.3d at pp. 906-907.) Thus, the Ninth Circuit Court of Appeals has held that the ADA applies to a restaurant's website and app, which connect customers to the goods and services of the restaurants. (Robles, supra, at pp. 905 – 06.)

However, DOJ has not adopted a regulation setting a standard for what specifically the ADA requires businesses to do in order to make their websites accessible. (See Robles, supra, at p. 908.) This lack of a specific standard for website compliance creates uncertainty among both businesses and the public; also, the lack of a specific standard may be related to a recent reported increase in litigation, or at least threatened litigation, regarding the accessibility of websites.

AB 1757 (Judiciary) establishes a website accessibility standard and protects businesses from liability for website accessibility violations. Among other things, AB 1757 creates a presumption in state law that a website of a business entity that meets a specified standard (WCAG 2.1 Level AA) complies with state accessibility requirements and therefore is not liable for damages. The WCAG 2.1 Level AA was published in 2018. Upon the defendant business establishing by a preponderance of the evidence that the internet website complies with the website-related accessibility standard, the plaintiff may rebut the presumption, but can only do so with clear and convincing evidence, showing that, notwithstanding the internet website's compliance with the standard, the plaintiff either personally encountered a barrier that caused the plaintiff to experience a difference in their ability to access or use the website, or was deterred from accessing all or part of the website or the content of the website because of the website's failure to provide equally effective communication or to facilitate full and equal enjoyment of the entity's goods and services offered to the public.

According to the Author

Many brick and mortar businesses who did not have websites prior to the Covid-19 Pandemic, have put their businesses online to try and survive to keep their business open during these uniquely hard times. Since then, there has been a significant increase in website accessibility lawsuits against small businesses where plaintiffs claim that they cannot access websites because they are incompatible with assistive technologies. The majority of small businesses do not have legal counsel to advise when they receive one of these Title III lawsuits due to their website and often settle—paying thousands of dollars. Unfortunately, if they don’t remedy their website accessibility quickly and correctly they can be sued again and again. Thus, forcing them out of business.

Creating a notice for websites accessibility infractions for small businesses could mean that business get to stay open and get into compliance faster without fear of additional lawsuits than with the current process.

Arguments in Support

The California Apartment Association writes in support of this bill as follows:

[S]ome litigious attorneys are abusing state and federal accessibility laws, suing businesses that may not understand how their internet websites are not legally accessible to the public. AB 1404 addresses this problem by providing more information to businesses that are sued because their websites may not be accessible to all users.

Arguments in Opposition

No opposition on file.

FISCAL COMMENTS

According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

VOTES:

ASM JUDICIARY: 11-0-0

YES: Maienschein, Essayli, Connolly, Dixon, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas, Sanchez

ASM APPROPRIATIONS: 14-0-2

YES: Holden, Megan Dahle, Calderon, Wendy Carrillo, Dixon, Mike Fong, Addis, Lowenthal, Papan, Pellerin, Robert Rivas, Sanchez, Weber, Wilson

ABS, ABST OR NV: Bryan, Mathis

ASSEMBLY FLOOR: 74-0-6

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Wallis, Ward, Weber, Wicks, Wood, Zbur, Rendon

ABS, ABST OR NV: Cervantes, Vince Fong, Friedman, Villapudua, Waldron, Wilson

SENATE FLOOR: 39-0-1

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Caballero

UPDATED

VERSION: September 8, 2023

CONSULTANT: Alison Merrilees / JUD. / (916) 319-2334 FN: 0002361

 THIRD READING  

Bill No: AB 1404

Author: Wendy Carrillo (D)

Amended: 9/8/23 in Senate

Vote: 21

SENATE JUDICIARY COMMITTEE: 11-0, 7/11/23

AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Min, Niello, Stern, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 74-0, 5/18/23 (Consent) - See last page for vote

SUBJECT: Disability access: internet website-related accessibility claims

SOURCE: Author

DIGEST:

This bill requires a plaintiff’s attorneys to provide a copy of a specified notice with each demand letter or complaint sent to or served upon a defendant where the plaintiff alleges an internet website-related accessibility claim.

Senate Floor Amendments of 9/8/23 change the dates in the bill to reflect the bill passing out of the Legislature in 2024 instead of 2023.

ANALYSIS:

Existing law:

1. Provides, pursuant to 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. § 12182.)
2. Provides that pursuant to Section 508 of the federal Rehabilitation Act, all federal agencies, when they develop, procure, maintain, or use electronic and information technology, must give disabled employees and members of the public access to information that is comparable to access available to others. (29 U.S.C. § 794 d.)
3. Holds, pursuant to case law, that the websites and apps of businesses that are public places or places of public accommodation are governed by the ADA, which "applies to the services of a place of public accommodation, not services in a place of public accommodation.” (Nat'l Fed'n of the Blind v. Target Corp. (N.D. Cal. 2006) 452 F. Supp. 2d 946, 953.)
4. Provides, pursuant to the Unruh Civil Rights Act, 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; provides that a violation of the ADA also constitutes a violation of Unruh; and subjects a person or entity in violation 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. (Civ. Code § 51 et seq.)
5. Provides, pursuant to the Disabled Persons Act, 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, including hospitals, clinics and physicians’ offices, public facilities and other public places, and also provides that a violation of an individual’s rights under the ADA constitutes a violation of state law. (Civ. Code § 54.)
6. Entitles individuals with disabilities to full and equal access to public accommodations, subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons. (Civ. Code § 54.1.)
7. 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.
8. Requires an attorney who sends or serves a complaint alleging that an internet website is not accessible to satisfy specified requirements, including, among other things, sending a copy of the complaint and submitting information about the complaint to the California Commission on Disability Access.

This bill:

1. Requires an attorney to provide a copy of a specified written advisory notice as with each demand letter or complaint sent to or served upon a defendant alleging an internet website-related accessibility claim.
2. Provides that until the Judicial Council adopts this notice, the attorney shall provide a written statement that replicates the advisory notice.
3. Provides that on or before January 1, 2026, the Judicial Council shall adopt a written advisory notice that shall be used by a plaintiff’s attorney to comply with the requirements of 1).
4. Provides that the advisory notice shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the advisory notice is available in additional languages, and on the Judicial Council’s internet website where the different versions of the advisory notice are located.
5. Specifies that the requirements of this bill do not apply to an action brought by the Attorney General, the Civil Rights Department, or any district attorney, city attorney, or county counsel.
6. Provides that the requirements of this bill only apply to claims filed on or after January 1, 2025.
7. Provides that the provisions of this bill become operative only if AB 1757 (Committee on Judiciary, 2023) is enacted and takes effect on or before January 1, 2025.
8. Defines several terms in the bill based on the definitions that would be codified by AB 1757.

Background

This bill is a companion measure to AB 1757 (Committee on Judiciary, 2023) and requires a plaintiff’s attorney to provide a copy of a specified notice with each demand letter or complaint sent to or served upon a defendant where the plaintiff alleges an internet website-related accessibility claim. This bill is supported by the California Apartment Association.

Comments

1. Purpose of the bill. According to the author:

Many brick and mortar businesses who did not have websites prior to the Covid-19 Pandemic, have put their businesses online to try and survive to keep their business open during these uniquely hard times. Since then, there has been a significant increase in website accessibility lawsuits against small businesses where plaintiffs claim that they cannot access websites because they are incompatible with assistive technologies. The majority of small businesses do not have legal counsel to advise when they receive one of these Title III lawsuits due to their website and often settle—paying thousands of dollars. Unfortunately, if they don’t remedy their website accessibility quickly and correctly they can be sued again and again. Thus, forcing them out of business.

Creating a notice for websites accessibility infractions for small businesses could mean that business get to stay open and get into compliance faster without fear of additional lawsuits than with the current process.

1. Requires a written advisory notice to be provided by an attorney with each demand letter or complaint sent to or served upon a defendant alleging an internet website-related accessibility claim.

AB 1757 (Committee on Judiciary) is a companion measure. AB 1757 creates a presumption in state law that a website of a business entity that meets WCAG 2.1 Level AA standard, as specified, is presumed to provide equally effective communication for the purpose of determining whether an award of statutory damages is warranted under specified website accessibility laws.

This bill requires the advisory notice to state all of the following:

ADVISORY NOTICE TO DEFENDANT

STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY INFORMATION

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’s internet website 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 internet website does not comply with one or more existing accessibility laws or regulations protecting the civil rights of persons with disabilities.

YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability access laws is a serious and significant responsibility that applies to all California business owners with places of public accommodation. You may obtain information about your legal obligations and how to comply with disability access laws from the California Commission on Disability Access by accessing the commission’s internet website at www.ccda.ca.gov/guide.htm or from the Department of Rehabilitation by accessing its internet website at https://dor.ca.gov/Home/DAS.

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 have the right to seek assistance or advice about this demand letter or 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.

ADDITIONAL THINGS YOU SHOULD KNOW

YOU MAY NOT BE LIABLE FOR ANY DAMAGES IF YOUR INTERNET WEBSITE CONFORMS TO SPECIFIED STANDARDS: If you are a small business owner and receive a written notice claiming that your internet website does not comply with one or more existing accessibility laws or regulations protecting the civil rights of persons with disabilities, you should be aware that an internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages is warranted if the internet website conforms to the internet website-related accessibility standard defined in state law. 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.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 9/8/23)

California Apartment Association

OPPOSITION: (Verified 9/8/23)

None received

ARGUMENTS IN SUPPORT: The California Apartment Association writes:

On behalf of the members of the California Apartment Association, I extend to you the Association’s continued support for AB 1404, your bill that requires when a civil complaint is served on a business alleging a website accessibility violation, that the business also receive a notice informing the business of important legal rights and obligations relating to the accessibility of internet websites, including the fact that the business may not be liable for any damages if its website complies with a specified website accessibility standard.

As you know, some litigious attorneys are abusing state and federal accessibility laws, suing businesses that may not understand how their internet websites are not legally accessible to the public. AB 1404 addresses this problem by providing more information to businesses that are sued because their websites may not be accessible to all users.

ASSEMBLY FLOOR: 74-0, 5/18/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Wallis, Ward, Weber, Wicks, Wood, Zbur, Rendon

NO VOTE RECORDED: Cervantes, Vince Fong, Friedman, Villapudua, Waldron, Wilson

Prepared by: Margie Estrada / JUD. / (916) 651-4113

9/11/23 12:52:42

**** END ****

 THIRD READING 

Bill No: AB 1404

Author: Wendy Carrillo (D)

Amended: 8/14/23 in Senate

Vote: 21

SENATE JUDICIARY COMMITTEE: 11-0, 7/11/23

AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Min, Niello, Stern, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 74-0, 5/18/23 (Consent) - See last page for vote

SUBJECT: Disability access: internet website-related accessibility claims

SOURCE: Author

DIGEST:

This bill requires a plaintiff’s attorneys to provide a copy of a specified notice with each demand letter or complaint sent to or served upon a defendant where the plaintiff alleges an internet website-related accessibility claim.

ANALYSIS:

Existing law:

1. Provides, pursuant to 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. § 12182.)
2. Provides that pursuant to Section 508 of the federal Rehabilitation Act, all federal agencies, when they develop, procure, maintain, or use electronic and information technology, must give disabled employees and members of the public access to information that is comparable to access available to others. (29 U.S.C. § 794 d.)
3. Holds, pursuant to case law, that the websites and apps of businesses that are public places or places of public accommodation are governed by the ADA, which "applies to the services of a place of public accommodation, not services in a place of public accommodation.” (Nat'l Fed'n of the Blind v. Target Corp. (N.D. Cal. 2006) 452 F. Supp. 2d 946, 953.)
4. Provides, pursuant to the Unruh Civil Rights Act, 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; provides that a violation of the ADA also constitutes a violation of Unruh; and subjects a person or entity in violation 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. (Civ. Code § 51 et seq.)
5. Provides, pursuant to the Disabled Persons Act, 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, including hospitals, clinics and physicians’ offices, public facilities and other public places, and also provides that a violation of an individual’s rights under the ADA constitutes a violation of state law. (Civ. Code § 54.)
6. Entitles individuals with disabilities to full and equal access to public accommodations, subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons. (Civ. Code § 54.1.)
7. 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.
8. Requires an attorney who sends or serves a complaint alleging that an internet website is not accessible to satisfy specified requirements, including, among other things, sending a copy of the complaint and submitting information about the complaint to the California Commission on Disability Access.

This bill:

1. Requires an attorney to provide a copy of a specified written advisory notice as with each demand letter or complaint sent to or served upon a defendant alleging an internet website-related accessibility claim.
2. Provides that until the Judicial Council adopts this notice, the attorney shall provide a written statement that replicates the advisory notice.
3. Provides that on or before January 1, 2025, the Judicial Council shall adopt a written advisory notice that shall be used by a plaintiff’s attorney to comply with the requirements of 1).
4. Provides that the advisory notice shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the advisory notice is available in additional languages, and on the Judicial Council’s internet website where the different versions of the advisory notice are located.
5. Specifies that the requirements of this bill do not apply to an action brought by the Attorney General, the Civil Rights Department, or any district attorney, city attorney, or county counsel.
6. Provides that the requirements of this bill only apply to claims filed on or after January 1, 2024.
7. Provides that the provisions of this bill become operative only if AB 1757 (Committee on Judiciary, 2023) is enacted and takes effect on or before January 1, 2024.
8. Defines several terms in the bill based on the definitions that would be codified by AB 1757.

Background

This bill is a companion measure to AB 1757 (Committee on Judiciary, 2023) and requires a plaintiff’s attorney to provide a copy of a specified notice with each demand letter or complaint sent to or served upon a defendant where the plaintiff alleges an internet website-related accessibility claim. This bill is supported by the California Apartment Association.

Comments

1. Purpose of the bill. According to the author:

Many brick and mortar businesses who did not have websites prior to the Covid-19 Pandemic, have put their businesses online to try and survive to keep their business open during these uniquely hard times. Since then, there has been a significant increase in website accessibility lawsuits against small businesses where plaintiffs claim that they cannot access websites because they are incompatible with assistive technologies. The majority of small businesses do not have legal counsel to advise when they receive one of these Title III lawsuits due to their website and often settle—paying thousands of dollars. Unfortunately, if they don’t remedy their website accessibility quickly and correctly they can be sued again and again. Thus, forcing them out of business.

Creating a notice for websites accessibility infractions for small businesses could mean that business get to stay open and get into compliance faster without fear of additional lawsuits than with the current process.

1. Requires a written advisory notice to be provided by an attorney with each demand letter or complaint sent to or served upon a defendant alleging an internet website-related accessibility claim.

AB 1757 (Committee on Judiciary) is a companion measure. AB 1757 creates a presumption in state law that a website of a business entity that meets WCAG 2.1 Level AA standard, as specified, is presumed to provide equally effective communication for the purpose of determining whether an award of statutory damages is warranted under specified website accessibility laws.

This bill requires the advisory notice to state all of the following:

ADVISORY NOTICE TO DEFENDANT

STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY INFORMATION

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’s internet website 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 internet website does not comply with one or more existing accessibility laws or regulations protecting the civil rights of persons with disabilities.

YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability access laws is a serious and significant responsibility that applies to all California business owners with places of public accommodation. You may obtain information about your legal obligations and how to comply with disability access laws from the California Commission on Disability Access by accessing the commission’s internet website at www.ccda.ca.gov/guide.htm or from the Department of Rehabilitation by accessing its internet website at https://dor.ca.gov/Home/DAS.

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 have the right to seek assistance or advice about this demand letter or 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.

ADDITIONAL THINGS YOU SHOULD KNOW

YOU MAY NOT BE LIABLE FOR ANY DAMAGES IF YOUR INTERNET WEBSITE CONFORMS TO SPECIFIED STANDARDS: If you are a small business owner and receive a written notice claiming that your internet website does not comply with one or more existing accessibility laws or regulations protecting the civil rights of persons with disabilities, you should be aware that an internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages is warranted if the internet website conforms to the internet website-related accessibility standard defined in state law. 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.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 8/23/23)

California Apartment Association

OPPOSITION: (Verified 8/23/23)

None received

ARGUMENTS IN SUPPORT: The California Apartment Association writes:

On behalf of the members of the California Apartment Association, I extend to you the Association’s continued support for AB 1404, your bill that requires when a civil complaint is served on a business alleging a website accessibility violation, that the business also receive a notice informing the business of important legal rights and obligations relating to the accessibility of internet websites, including the fact that the business may not be liable for any damages if its website complies with a specified website accessibility standard.

As you know, some litigious attorneys are abusing state and federal accessibility laws, suing businesses that may not understand how their internet websites are not legally accessible to the public. AB 1404 addresses this problem by providing more information to businesses that are sued because their websites may not be accessible to all users.

ASSEMBLY FLOOR: 74-0, 5/18/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Wallis, Ward, Weber, Wicks, Wood, Zbur, Rendon

NO VOTE RECORDED: Cervantes, Vince Fong, Friedman, Villapudua, Waldron, Wilson

Prepared by: Margie Estrada / JUD. / (916) 651-4113

8/24/23 11:13:33

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: AB 1404 (Author:Wendy Carrillo)

Version: June 19, 2023

Hearing Date: July 11, 2023

Fiscal: Yes

Urgency: No

Consultant: ME

SUBJECT

Disability access: internet website-related accessibility claims

DIGEST

This bill requires a plaintiff’s attorneys to provide a copy of a specified notice with each demand letter or complaint sent to or served upon a defendant where the plaintiff alleges an internet website-related accessibility claim.

EXECUTIVE SUMMARY

This bill is a companion measure to AB 1757 (Committee on Judiciary, 2023) and requires a plaintiff’s attorneys to provide a copy of a specified notice with each demand letter or complaint sent to or served upon a defendant where the plaintiff alleges an internet website-related accessibility claim.

This bill is supported by the California Apartment Association and numerous business groups, including the California Chamber of Commerce. The bill is also supported by Disability Rights California.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Provides, pursuant to 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. § 12182.)
2. Pursuant to Section 508 of the federal Rehabilitation Act, all federal agencies, when they develop, procure, maintain, or use electronic and information technology, must give disabled employees and members of the public access to information that is comparable to access available to others. (29 U.S.C. § 794 d.)
3. Holds, pursuant to case law, that the websites and apps of businesses that are public places or places of public accommodation are governed by the ADA, which "applies to the services of a place of public accommodation, not services in a place of public accommodation.” (Nat'l Fed'n of the Blind v. Target Corp. (N.D. Cal. 2006) 452 F. Supp. 2d 946, 953.)
4. Pursuant to the Unruh Civil Rights Act, 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; provides that a violation of the ADA also constitutes a violation of Unruh; and subjects a person or entity in violation 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. (Civ. Code § 51 et seq.)
5. Provides, pursuant to the Disabled Persons Act, 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, including hospitals, clinics and physicians’ offices, public facilities and other public places, and also provides that a violation of an individual’s rights under the ADA constitutes a violation of state law. (Civ. Code § 54.)
6. Entitles individuals with disabilities to full and equal access to public accommodations, subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons. (Civ. Code § 54.1.)
7. 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.
8. Existing law also requires an attorney who sends or serves a complaint alleging that an internet website is not accessible to satisfy specified requirements, including, among other things, sending a copy of the complaint and submitting information about the complaint to the California Commission on Disability Access.

This bill:

1. Requires an attorney to provide a copy of a specified written advisory notice as with each demand letter or complaint sent to or served upon a defendant alleging an internet website-related accessibility claim.
2. Provides that until the Judicial Council adopts this notice, the attorney shall provide a written statement that replicates the advisory notice.
3. Provides that on or before January 1, 2025, the Judicial Council shall adopt a written advisory notice that shall be used by a plaintiff’s attorney to comply with the requirements of 1).
4. Provides that the advisory notice shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the advisory notice is available in additional languages, and on the Judicial Council’s internet website where the different versions of the advisory notice are located.
5. Specifies that the requirements of this bill do not apply to an action brought by the Attorney General or any district attorney, city attorney, or county counsel.
6. Provides that the requirements of this bill only apply to claims filed on or after January 1, 2024.
7. Provides that the provisions of this bill become operative only if AB 1757 (Committee on Judiciary, 2023) is enacted and takes effect on or before January 1, 2024.
8. Defines several terms in the bill based on the definitions that would be codified by AB 1757.

COMMENTS

1. Stated need for the bill

According to the author:

Many brick and mortar businesses who did not have websites prior to the Covid-19 Pandemic, have put their businesses online to try and survive to keep their business open during these uniquely hard times. Since then, there has been a significant increase in website accessibility lawsuits against small businesses where plaintiffs claim that they cannot access websites because they are incompatible with assistive technologies. The majority of small businesses do not have legal counsel to advise when they receive one of these Title III lawsuits due to their website and often settle—paying thousands of dollars. Unfortunately, if they don’t remedy their website accessibility quickly and correctly they can be sued again and again. Thus, forcing them out of business.

Creating a notice for websites accessibility infractions for small businesses could mean that business get to stay open and get into compliance faster without fear of additional lawsuits than with the current process.

2. Requires a written advisory notice to be provided by an attorney with each demand letter or complaint sent to or served upon a defendant alleging an internet website-related accessibility claim

AB 1757 (Committee on Judiciary) is scheduled to be heard in this Committee on the same day as AB 1404. They are companion measures. AB 1757 creates a presumption in state law that a website of a business entity that meets WCAG 2.1 Level AA standard, as specified, is presumed to provide equally effective communication for the purpose of determining whether an award of statutory damages is warranted under specified website accessibility laws.

This bill requires the advisory notice to state all of the following:

“ADVISORY NOTICE TO DEFENDANT

STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY INFORMATION

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’s internet website 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 internet website does not comply with one or more existing accessibility laws or regulations protecting the civil rights of persons with disabilities.

YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability access laws is a serious and significant responsibility that applies to all California business owners with places of public accommodation. You may obtain information about your legal obligations and how to comply with disability access laws from the California Commission on Disability Access by accessing the commission’s internet website at www.ccda.ca.gov/guide.htm or from the Department of Rehabilitation by accessing its internet website at https://www.dor.ca.gov/Home/DisabilityAccessServices.

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 have the right to seek assistance or advice about this demand letter or 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.

ADDITIONAL THINGS YOU SHOULD KNOW

YOU MAY NOT BE LIABLE FOR ANY DAMAGES IF YOUR INTERNET WEBSITE COMPLIES WITH SPECIFIED STANDARDS: If you are a small business owner and receive a written notice claiming that your internet website does not comply with one or more existing accessibility laws or regulations protecting the civil rights of persons with disabilities, you should be aware that an internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages is warranted if the internet website complies with the internet website-related accessibility standard defined in state law. 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.”

3. Amendments

Amendments are required to make this bill consistent with the current version of AB 1757.

Amendment 1

Change the Department of Rehabilitation website reference to read as follows: https://dor.ca.gov/Home/DAS

Amendment 2

Change the last paragraph of the advisory to read as follows:

YOU MAY NOT BE LIABLE FOR ANY DAMAGES IF YOUR INTERNET WEBSITE COMPLIES WITH CONFORMS TO SPECIFIED STANDARDS: If you are a small business owner and receive a written notice claiming that your internet website does not comply with one or more existing accessibility laws or regulations protecting the civil rights of persons with disabilities, you should be aware that an internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages is warranted if the internet website complies with conforms to the internet website-related accessibility standard defined in state law. 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.

4. Support

The California Apartment Association, in support, writes:

On behalf of the members of the California Apartment Association, I extend to you the Association’s continued support for AB 1404, your bill that requires when a civil complaint is served on a business alleging a website accessibility violation, that the business also receive a notice informing the business of important legal rights and obligations relating to the accessibility of internet websites, including the fact that the business may not be liable for any damages if its website complies with a specified website accessibility standard.

As you know, some litigious attorneys are abusing state and federal accessibility laws, suing businesses that may not understand how their internet websites are not legally accessible to the public. AB 1404 addresses this problem by providing more information to businesses that are sued because their websites may not be accessible to all users.

SUPPORT

California Apartment Association

OPPOSITION

None known

RELATED LEGISLATION

Pending Legislation: AB 1757 (Committee on Judiciary, 2023) See Comment 2.

Prior Legislation:

AB 2917 (Mike Fong, Ch. 559, Stats. 2022) required more information about disability access lawsuits based on the inaccessibility of internet websites to be reported by attorneys to the California Commission on Disability Access (CCDA) and included in CCDA's annual report to the Legislature

AB 2123 (Chau, 2020) would have created a presumption in state law that if the website or mobile application of a business which is a public place or a place of public accommodation meets a specified standard of accessibility, it does not violate California’s Unruh Civil Rights Act or Disabled Persons Act. AB 2123 died in the Assembly Judiciary Committee.

SB 1186 (Steinberg, Ch. 383, Stats. 2012) among other things, required an attorney who sends a demand letter or files a lawsuit alleging a violation of construction related disability access laws to submit a copy and report specified information about the claim and its outcome to the CCDA.

PRIOR VOTES:

Assembly Floor (Ayes 74, Noes 0)

Assembly Appropriations Committee (Ayes 14, Noes 0)

Assembly Judiciary Committee (Ayes 11, Noes 0)

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

Date of Hearing: May 10, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 1404

Author:(Wendy Carrillo) – As Amended Ver:April 26, 2023

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires someone serving a civil complaint on a business alleging a website accessibility violation to also provide the business with a notice about legal rights and obligations relating to the accessibility of websites.

FISCAL EFFECT:

One-time costs (Trial Court Trust Fund, General Fund) to the Judicial Council of an unknown but likely minor amount. The bill requires Judicial Council to adopt a written advisory notice to be used by attorneys serving complaints in compliance with this bill, and requires the notice be available in multiple languages on Judicial Council’s website.

COMMENTS:

Background. According to the Assembly Committee on Judiciary, a few aggressive attorneys in California have targeted small businesses, which often have a limited understanding of disability law, and sued the small businesses for having websites that are inaccessible to people with disabilities. Both the Americans with Disabilities Act and the Unruh Civil Rights Act protect against discrimination against people with disabilities, and require businesses to ensure that their public facilities, including websites, are accessible to people with disabilities.

This bill seeks to provide information to businesses about their obligations to make their websites compliant with state and federal disability law. Under this bill, if an attorney serves a civil lawsuit on a business alleging that the business’s website is not accessible to all users, the attorney must also provide the business with a standard notice that includes information about the business’s legal rights and obligations in responding to the lawsuit and complying with disability law. The bill requires Judicial Council to develop the standard notice and make it available on its website in multiple languages, including English, Spanish, Chinese, Vietnamese, and Korean. The requirements in this bill are contingent on enactment of AB 950 (Maienschein), which is currently pending in this committee. AB 950 establishes a website accessibility standard and protects businesses from liability for certain website accessibility violations.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: April 25, 2023

ASSEMBLY COMMITTEE ON JUDICIARY

Brian Maienschein, Chair

ABPCA Bill Id:AB 1404

Author:(Wendy Carrillo) – As Introduced Ver:February 17, 2023

PROPOSED CONSENT (As Proposed to be Amended)

SUBJECT: Disability access: internet website-related accessibility claims: notice to defendants

KEY ISSUE: should defendants be informed, when served with a notice of a civil action filed against them for a violation of THE state disabled access laws based on the alleged inaccessibility of their websites, that they may have no liability for a violation if their website complies with the state’s website accessibility standard?

SYNOPSIS

Under the twenty-seven year-old 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. According to both federal courts and federal regulations, the ADA also applies to the websites and apps of public accommodations. The U.S. Department of Justice (DOJ) issued a notice of proposed rulemaking to establish a compliance standard for website accessibility in 2010, but the Trump Administration withdrew the proposed rulemaking in 2017. This lack of a specific standard for website compliance has created uncertainty among both businesses and the public and is commonly blamed for the recent spike in litigation about website accessibility. As with construction related accessibility claims, a few litigious attorneys are abusing the ADA to sue small businesses that may not understand either their obligations to make their internet websites accessible to the public, how to make them accessible, and how and why they may not be liable for paying damages if they took their cases to trial.

This bill seeks to address this problem by providing more information to businesses that are sued because their websites allegedly are not accessible to all users and therefore violate state and federal accessibility laws. As currently in print, the bill proposes that small businesses receive a notice with any complaint alleging an internet website accessibility violation, advising them that if the small business defendant corrects the violation within 60 days of receiving the notice, the bill would reduce the maximum statutory damages to $25. This advisory does not accurately summarize the underlying existing law (which is not proposed to be changed by the bill). Even if the underlying law were changed, this Committee has a long history of rejecting bills that create a notice and opportunity to cure alleged disability access violations because they act as a disincentive for businesses to comply with disability access laws.

As proposed to be amended, the bill requires that when a civil complaint, alleging a website accessibility violation, is served on a business, that the business also receives a notice informing the business of important legal rights and obligations relating to the accessibility of internet websites, including the fact that the business may not be liable for any damages if its website complies with a specified website accessibility standard; and makes this requirement contingent upon the enactment of another bill that establishes the website accessibility standard (AB 950 (Maienschein, 2022-23). The amendments are incorporated into the Summary of the bill, below, and explained in the analysis. The bill in print is supported by a number of business groups and has no opposition. It is unknown whether the groups that support the bill in print would also support the bill as it is proposed to be amended.

SUMMARY: Requires that when a civil complaint, alleging a website accessibility violation, is served on a business, that the business also receives a notice informing the business of important legal rights and obligations relating to the accessibility of internet websites, including the fact that the business may not be liable for any damages if its website complies with a specified website accessibility standard; and makes this notice requirement contingent upon the enactment of another bill (AB 950 (Maienschein, 2022-23) that establishes the website accessibility standard. Specifically, this bill:

1. Defines the following terms for purposes of the bill:
2. “Complaint” has the same meaning as a complaint alleging that an internet website is not accessible, as described in subdivision (a) of Section 55.565.
3. “Demand letter” means a prelitigation written document that is provided to a business alleging an internet website-related accessibility claim, whether or not the attorney intends to file a complaint, or eventually files a complaint, in state court.
4. “Internet website-related accessibility claim” means a civil claim in a civil action based wholly or in part on an alleged violation of any internet website-related accessibility standard, including, but not limited to, a claim brought under Section 51, 52, 54.1, 54.3, or 55.
5. “Internet website-related accessibility standard” has the same meaning as provided in paragraph (3) of subdivision (e) of Section 55.565, that is proposed to be established by AB 950 (Maienschein, 2022-23) as follows:

“Internet website-related accessibility standard” means the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA standard for the accessibility of internet websites established by the World Wide Web Consortium (W3C) Accessibility Guidelines Working Group on June 5, 2018, or the accessibility standards for Section 508 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794d) in Part 1194 of Title 36 of the Code of Federal Regulations. To the extent that there is an overlap between the applicable standards for internet websites under WCAG 2.1 and standards for information or communication technology under Section 508 of the federal Rehabilitation Act of 1973, the more recent WCAG 2.1 standard shall apply. Any subsequent more stringent update, revision, or replacement to either standard adopted by any final rule of the U.S. Access Board shall apply to this section.

1. Requires an attorney to provide a copy of the written advisory notice as specified in 3), below, with each demand letter or complaint sent to or served upon a defendant alleging an internet website-related accessibility claim. Until the Judicial Council adopts this notice, the attorney shall provide a written statement that replicates the advisory notice described in 3), below.
2. Requires, on or before January 1, 2025, the Judicial Council to adopt a written advisory notice that shall be used by a plaintiff’s attorney to comply with the requirements of the bill. The advisory notice shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the advisory notice is available in additional languages, and on the Judicial Council’s internet website where the different versions of the advisory notice are located. The advisory notice shall state all of the following:

“ADVISORY NOTICE TO DEFENDANT

STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY INFORMATION

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’s internet website 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 internet website does not comply with one or more existing accessibility laws or regulations protecting the civil rights of persons with disabilities.

YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability access laws is a serious and significant responsibility that applies to all California business owners with places of public accommodation. You may obtain information about your legal obligations and how to comply with disability access laws from the California Commission on Disability Access by accessing the Commission’s website at www.ccda.ca.gov/guide.htm or from the California Department of Rehabilitation by accessing its website at https://www.dor.ca.gov/Home/DisabilityAccessServices

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 have the right to seek assistance or advice about this demand letter or 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.

ADDITIONAL THINGS YOU SHOULD KNOW

YOU MAY NOT BE LIABLE FOR ANY DAMAGES IF YOUR WEBSITE COMPLIES WITH SPECIFIED STANDARDS: If you are a business owner and receive a written notice claiming that your internet website does not comply with one or more existing accessibility laws or regulations protecting the civil rights of persons with disabilities, you should be aware that an internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages is warranted if the internet website complies with the internet website-related accessibility standard defined in state law. 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.”

1. Clarifies that the requirement in 2), above, does not apply to an action brought by the Attorney General or any district attorney, city attorney, or county counsel.
2. Makes the bill applicable only to claims filed on or after January 1, 2024.
3. Makes enactment of the bill contingent upon the enactment of AB 950 of the 2022-23 legislative session. Should AB 950 not be enacted, the bill would not take effect.

EXISTING LAW:

1. 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. Section 12182.)
2. Pursuant to Section 508 of the federal Rehabilitation Act, all federal agencies, when they develop, procure, maintain, or use electronic and information technology, must give disabled employees and members of the public access to information that is comparable to access available to others. (29 U.S.C. 794 d.)
3. Holds, pursuant to case law, that the websites and apps of businesses that are public places or places of public accommodation are governed by the ADA, which "applies to the services of a place of public accommodation, not services in a place of public accommodation." (Nat'l Fed'n of the Blind v. Target Corp. (N.D. Cal. 2006) 452 F. Supp. 2d 946, 953.)
4. Pursuant to the 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; makes a violation of the ADA also constitutes a violation of Unruh; and subjects a person or entity in violation 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. (Civil Code Section 51 et seq. All further statutory references are to the California Civil Code, unless otherwise indicated.)
5. Provides, pursuant to the Disabled Persons Act (DPA), 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, including hospitals, clinics and physicians’ offices, public facilities and other public places, and also provides that a violation of an individual’s rights under the ADA constitutes a violation of state law. (Section 54.)
6. Provides that individuals with disabilities shall be entitled to full and equal access to public accommodations, subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons. (Section 54.1.)

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

COMMENTS: As with construction-related accessibility claims, a few litigious attorneys are abusing state and federal accessibility laws, including the Americans with Disabilities Act (ADA), and the state’s Unruh Civil Rights Act (Unruh), to sue small businesses that may not understand either their obligations to make their internet websites accessible to the public, how to make them accessible, and how and why they may not be liable for paying damages if they took their cases to trial. This bill seeks to address this problem by providing more information to businesses that are sued because their websites allegedly are not accessible to all users and therefore violate state and federal accessibility laws.

Background – Federal ADA and State Civil Rights Laws Protect the Ability of All Persons to Access Public Accommodations. Under the more than 30 year-old 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.

According to the California Supreme Court, “In 1992, shortly after passage of the ADA, the Legislature amended the state's disability protections ‘to strengthen California law in areas where it is weaker than the [ADA] and to retain California law when it provides more protection for individuals with disabilities than the [ADA].’ Two overlapping laws, the Unruh Civil Rights Act (§ 51) and the Disabled Persons Act (§§ 54–55.3), are the principal sources of state disability access protection.” (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044 [Citation to internal quotation deleted].) As a result of incorporating the ADA into the state’s Unruh Civil Rights, a plaintiff who prevails in a construction-related accessibility claim, like all plaintiffs in other civil rights cases, is entitled to minimum statutory damages of $4,000 per violation.

Therefore, since 1992, public accommodations in California have been required to comply with not only the ADA, but also with the state’s Unruh Act (Unruh) and Disabled Persons Act (DPA), which incorporate the ADA into their provisions and make a violation of the ADA punishable as a violation of Unruh and the DPA. (Sections 51, 54.) All persons who violate the DPA are liable for the actual damages and an amount determined by a jury, or the court sitting without a jury, up to a maximum of three times the actual damages (there is a minimum fine of $1,000) and attorney’s fees. While most violations of Unruh are subject to statutory damages of at least $4,000 per violation, for some construction-related accessibility claims lower damages (a minimum of $1,000 or $2,000, depending on the circumstances of the case) apply.

U.S. Department of Justice Regulations Regarding Website Accessibility, Including Proposed (and Later Abandoned) Specific Accessibility Compliance Standards. The United States Department of Justice (DOJ) is the agency responsible for enforcing federal civil rights laws, including the ADA. In that capacity, DOJ has promulgated regulations and technical advice to businesses that are public places and places of public accommodation about how to comply with the ADA. For example, DOJ regulations require that a public accommodation, in its communications to the public, “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” (28 C.F.R. 36.303(c)(1) (emphasis added); see Bragdon v. Abbott (1998) 524 U.S. 624, 646 [holding that DOJ's administrative guidance on ADA compliance is entitled to deference].)

DOJ has adopted regulations to define “auxiliary aids and services” to include “accessible electronic and information technology” or “other effective methods of making visually delivered materials available to individuals who are blind or have low vision” in 28 C.F.R. 36.303(b)(2). (Robles v. Domino's Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 904-905.) And DOJ has repeatedly affirmed the application of the ADA to the websites and apps of public accommodations. (See 75 Fed. Reg. 43460-01, 43464 (July 26, 2010); Robles, supra, 913 F.3d at pp. 906-907.) Thus, the Ninth Circuit Court of Appeals has held that the ADA applies to a restaurant’s website and app, which connect customers to the goods and services of the restaurants. (Robles, supra, at pp. 905 – 06.)

However, DOJ has not adopted a regulation setting a standard for what specifically the ADA requires businesses to do in order to make their websites accessible. (See Robles, supra, at p. 908.) Although DOJ issued a notice of proposed rulemaking to establish such a standard in 2010 (75 Fed. Reg. 43460-01 (July 26, 2010)), the Trump Administration withdrew the proposed rulemaking in 2017 (82 Fed. Reg. 60932-01 (Dec. 26, 2017)). While this lack of a specific standard for website compliance does not violate the due process rights of businesses or make the ADA unenforceable given that “[c]ourts are perfectly capable of interpreting the meaning of ‘equal’ and ‘effective’” (Robles, supra, at p. 911), it does create uncertainty among both businesses and the public; also, the lack of a specific standard may be related to a recent reported increase in litigation, or at least threatened litigation, regarding the accessibility of websites.

WCAG Standards, Including Versions and Levels of Compliance. In the absence of a specific standard for website compliance, courts and government entities sometimes rely on private standards developed by technology and accessibility experts, including the World Wide Web Consortium (W3C), the main international standards organization for the Internet. As part of their Web Accessibility Initiative, W3C has promulgated a series of web accessibility guidelines, including the Web Content Accessibility Guidelines (WCAG). WCAG standards are a set of recommendations for making Web content more accessible, particularly for people with disabilities. The first set of accessibility guidelines, called WCAG 1.0 became a W3C recommendation in May of 1999. The guidelines have been updated since then. WCAG 2.0 was published in December 2008 and became an ISO standard in October 2012. WCAG 2.1 became a W3C Recommendation in June of 2018. WCAG 2.2 is in the process of being developed and could be released this year.

WCAG 2.1 retains WCAG 2.0 in its entirety, but adds 17 additional success criteria to the 2.0 standard. The new success criteria are intended to address viewing of content on mobile devices and provide additional success criteria to improve the experience of individuals with low vision and cognitive impairments. W3C’s overview of the additional success criteria in version 2.1 can be accessed at the WCAG website: https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/. Regarding the level of compliance within each version of the standard, “Level A is a subset of Level AA. There are 25 criteria that you have to meet to reach Level A. To reach Level AA you have to meet 13 more criteria in addition to the 25 for Level A.” (https://myaccessible.website/blog/wcaglevels/wcag-levels-a-aa-aaa-difference.)

Courts and government entities have relied upon WCAG standards in addressing accessibility issues and compliance, particularly in settlement agreements and consent decrees. For example:

• In 2013, DOJ entered into a settlement agreement with Louisiana Tech University that encompassed not only the University’s website, but also all electronic and information technology, instructional materials and online courses. (See Settlement Agreement with Louisiana Tech University, DJ #204-33-116 (July 22, 2013), available at https://www.ada.gov/louisiana-tech.htm.)
• In 2014, the National Federal of the Blind and DOJ entered into a consent decree with HRB Digital LLC and HRB Tax Group, Inc., agreeing that H&R Block’s website and apps would comply with the WCAG 2.0 AA standards by January 1, 2016. (National Federation of the Blind, et al v. HRB Digital LLC and HRB Tax Group, Inc., Civil Action No. 1:13-cv-10799-GAO, United States District Court for the State of Massachusetts, Boston Division, Consent Decree – available at https://www.ada.gov/hrb-cd.htm.)
• In August of 2016, DOJ notified the University of California, Berkeley, that large segments of its free, publicly available audio and video content (including its YouTube channel, iTunes U platform, and Open Online Courses) were not accessible to individuals with hearing, vision, or manual disabilities. The letter observed that, “While the University of California’s Information Technology Accessibility Policy adopts the WCAG 2.0 AA technical standard, which provides clear parameters for ensuring online content is accessible to individuals with disabilities, UC Berkeley has not ensured compliance with its policy.” (See Letter dated August 30, 2016 to University of California, Berkeley, available at https://www.ada.gov/briefs/uc_berkley_lof.pdf.)
• In November of 2018, the National Federation of the Blind announced a settlement agreement with Alameda County, California, in which the county agreed to utilize WCAG 2.1 AA in making its election website accessible. (See https://www.nfb.org/about-us/press-room/alameda-county-will-make-voting-more-accessible-blind.)
• In January of 2019, the Ninth Circuit Court of Appeals observed in Robles that “the district court can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.” (Robles, supra, 913 F.3d at p. 907.)

AB 950 (Maienschein) establishes a website accessibility standard and protects businesses from liability for website accessibility violations. Among other things, AB 950 creates a presumption in state law that a website of a business entity that meets a specified standard (WCAG 2.1 Level AA) complies with state accessibility requirements and therefore is not liable for damages. The WCAG 2.1 Level AA was published in 2018. Upon the defendant business establishing by a preponderance of the evidence that the internet website complies with the website-related accessibility standard, the plaintiff may rebut the presumption, but can only do so with clear and convincing evidence, showing that, notwithstanding the internet website’s compliance with the standard, the plaintiff either personally encountered a barrier that caused the plaintiff to experience a difference in their ability to access or use the website, or was deterred from accessing all or part of the website or the content of the website because of the website’s failure to provide equally effective communication or to facilitate full and equal enjoyment of the entity’s goods and services offered to the public.

The State of California has complied with the website accessibility standard for website accessibility established by AB 950 for the past five years. The State of California uses WCAG 2.1 AA as the benchmark for its agencies to make their internet websites accessible. State law—specifically Government Code Section 11135--requires that all electronic and information technology developed or purchased by the State of California Government is accessible to people with disabilities. Since 2019, state law has required the director of each state agency or entity and the chief information officer of that state agency or entity to biannually post on the home page of the agency’s or entity’s Internet Web site a signed certification that the agency’s or entity’s Internet Web site is in compliance with specified accessibility standards. The original law required state websites to comply with “the Web Content Accessibility Guidelines 2.0, or a subsequent version, published by the Web Accessibility Initiative of the World Wide Web Consortium at a minimum Level AA success criteria.” (Gov. Code 11546.7 (a).) Given the adoption of WCAG 2.1 AA in 2018, the state now complies with that standard.

The website of the California Department of Rehabilitation (CDR) contains a Website Accessibility Certification (Web_Accessibility_Cert_DOR_posted_July_2021.docx (live.com)), as well as a “Website Accessibility Toolkit.” CDR’s website accessibility toolkit is designed to help businesses “determine if your website meets state accessibility requirements and to provide resources to help make your website and website content accessible.” (See https://dor.ca.gov/Home/WebAccessibilityToolkit.) Among other things, the toolkit has accessibility checklists and self-assessment tools; a list of vendors who provide digital accessibility services; advice for how to create accessible content; a list of relevant state and federal laws and regulations regarding accessible content; training resources; and FAQs.

This bill and proposed author’s amendments. This bill—both in print and as proposed to be amended—seeks to provide more information to businesses that are sued because their websites allegedly are not accessible to all users and therefore violate state and federal accessibility laws.

As currently in print, the bill proposes that a small business should receive a notice with any complaint served on the business that alleges an internet website accessibility violation, advising them that if the business corrects the violation within 60 days of receiving the notice, the maximum statutory damages owed by the business would be $25. The proposed notice does not accurately summarize existing law (which is not proposed to be changed by the bill). Even if the underlying law were proposed to be changed by the bill, this Committee has a long history of rejecting bills that give businesses notice and opportunity to cure an alleged disability access violation because they act as a disincentive for businesses to comply with disability access laws.

As proposed to be amended, the bill requires that when a civil complaint, alleging a website accessibility violation, is served on a business of any size, that the business receive a notice informing the business of important legal rights and obligations relating to the accessibility of internet websites, including the fact that the business may not be liable for any damages if its website complies with a specified website accessibility standard; and makes this requirement contingent upon the enactment of another bill that establishes the website accessibility standard (AB 950 (Maienschein, 2022-23). Given that the website accessibility standard referred to in this bill and the presumption against liability for websites that comply with the standard, will be established only if AB 950 is enacted, it makes sense for the notice provisions of this bill to be contingent upon the enactment of AB 950. The author’s amendments read as follows:

55.33. (a) For purposes of this part, all of the following definitions apply:

(1) “Complaint” has the same meaning as a complaint alleging that an internet website is not accessible, as described in subdivision (b) of Section 55.32 (a) of Section 55.565.

(2) “Demand letter” means a prelitigation written document that is provided to a business alleging an internet website-related accessibility claim, whether or not the attorney intends to file a complaint, or eventually files a complaint, in state court.

(3) “Internet website-related accessibility claim” means a civil claim in a civil action based wholly or in part on an alleged violation of any internet website-related accessibility standard, including, but not limited to, a claim brought under Section 51, 52, 54.1, 54.3, or 55.

(4) “Internet website-related accessibility standard” means a provision, standard, or regulation under state or federal law requiring compliance with standards for making internet websites accessible to persons with disabilities, including, but not limited to, any provision, standard, or regulation set forth in Section 51, 54.1, or 55 of this code, Sections 7405 and 11135 of the Government Code, the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), and the federal Americans with Disabilities Act Accessibility Guidelines (Appendix A to Part 36 of Title 28 of the Code of Federal Regulations) has the same meaning as provided in paragraph (3) of subdivision (e) of Section 55.565.

(5) “Small business” means a business that has employed 25 or fewer employees on average over the past three years, or for the years it has been in existence if less than three years, as evidenced by wage report forms filed with the Employment Development Department.

(b) (1) An attorney shall provide a copy of the written advisory notice as specified in subdivision (c) with each demand letter or complaint sent to or served upon a small business defendant alleging an internet website-related accessibility claim. Until the Judicial Council adopts this notice, the attorney shall provide a written statement that replicates the advisory notice described in subdivision (c).

(2) Notwithstanding any other law, a small business defendant’s liability for statutory damages in an internet website-related accessibility claim is reduced to a maximum of twenty-five dollars ($25), if the small business defendant corrects the violation within 60 days of receiving the notice described in paragraph (1).

(c) On or before January 1, 2025, the Judicial Council shall adopt a written advisory notice that shall be used by a plaintiff’s attorney to comply with the requirements of paragraph (1) of subdivision (b). The advisory notice shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the advisory notice is available in additional languages, and on the Judicial Council’s internet website where the different versions of the advisory notice are located. The advisory notice shall state all of the following:

“ADVISORY NOTICE TO DEFENDANT

STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY INFORMATION FOR SMALL BUSINESSES

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’s internet website 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 internet website does not comply with one or more existing accessibility laws or regulations protecting the civil rights of persons with disabilities.

YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability access laws is a serious and significant responsibility that applies to all California business owners with places of public accommodation. You may obtain information about your legal obligations and how to comply with disability access laws through from the California Commission on Disability Access by accessing the Commission’s website at www.ccda.ca.gov/guide.htm or from the California Department of Rehabilitation by accessing its website at https://www.dor.ca.gov/Home/DisabilityAccessServices.

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 have the right to seek assistance or advice about this demand letter or 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.

ADDITIONAL THINGS YOU SHOULD KNOW

RIGHT TO CORRECT A VIOLATION YOU MAY NOT BE LIABLE FOR ANY DAMAGES IF YOUR WEBSITE COMPLIES WITH SPECIFIED STANDARDS: If you are a small business owner and receive a written notice claiming that your internet website does not comply with one or more existing accessibility laws or regulations protecting the civil rights of persons with disabilities, you have 60 days to correct the violation. If you correct all of the internet website-related violations that are the basis of the demand or complaint against you within 60 days of receiving this notice, you may qualify for reduced damages you should be aware that an internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages is warranted if the internet website complies with the internet website-related accessibility standard defined in state law. 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.”

(d) (1) This section does not apply to an action brought by the Attorney General or any district attorney, city attorney, or county counsel.

(2) This section shall apply only to claims filed on or after January 1, 2024.

(3) Enactment of this section is contingent upon the enactment of AB 950 of the 2022-23 legislative session. Should AB 950 not be enacted, this section would not take effect.

This commonsense measure will provide more information to businesses that are sued for website violations. It is hoped that by doing so, the few attorneys who file frivolous website accessibility lawsuits will be less likely to do so in the future.

ARGUMENTS IN SUPPORT: The bill in print is supported by a coalition of business groups led by the Civil Justice Association of California. These groups write the following about why litigation about website compliance is a problem under the status quo:

Shakedown lawsuits, often filed under the American Disabilities Act (ADA), can cause a family-owned business to close its doors. ADA lawsuits increasingly target website accessibility. ADA digital cases soared by 23% from 2019 to 2020, as the absence of clear standards in the online space has spawned a new wave of litigation. While recent California case law has provided some clarity in this area of law, many small businesses continue to be targeted.

REGISTERED SUPPORT / OPPOSITION:

Support (of the bill in print)

American Property Casualty Insurance Association
Cal Chamber
California Association of Realtors
California Business Properties Association
California Credit Union League
California Hotel & Lodging Association
California Restaurant Association
Civil Justice Association of California
Cooperative of American Physicians

Opposition

None on file

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