BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          SB 209                                                      S
          Senators Corbett & Harman                                   B
          As Introduced
          Hearing Date: March 31, 2009                                2
          Civil Code                                                  0
          GMO:jd                                                      9
                                                                      

                                        SUBJECT
                                           
                 Civil Actions:  Access by Persons with Disabilities

                                      DESCRIPTION  

          This bill would require a Certified Access Specialist (CASp)  
          inspection report, submitted to the court in an action involving  
          alleged violations of disability access laws to trigger an early  
          evaluation conference, to remain confidential rather than be  
          under seal and subject to protective orders of the court.  The  
          bill would specify who would have access to the CASp report and  
          when confidentiality of the report would terminate.

                                      BACKGROUND  

          In 2008, landmark legislation was enacted to increase  
          enforcement of disability access laws while providing a measure  
          of relief to businesses that are in compliance or that attempt  
          to comply with federal and state disability access laws. (SB  
          1608, Corbett et al., Ch. 549, Stats. 2008.)  SB 1608 created  
          the California Commission on Disability Access, required all  
          inspections relating to permitting, plan checks, or new  
          construction in privately owned buildings to be conducted by a  
          building inspector who is a Certified Access Specialist (CASp),  
          and established a procedure for a business sued for violations  
          of construction-related disability access requirements to  
          request a court-ordered stay and early evaluation conference  
          (EEC) to resolve the complaint (if possible), if the business  
          had been inspected by a CASp.

          SB 209 is a follow-up bill to address some issues, raised by the  
          Judicial Council and the California Newspaper Publishers  
                                                                (more)



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          Association about the sealing of a CASp report filed with the  
          court by a qualified defendant, that were too late for inclusion  
          in the final version of the bill.  These issues were identified  
          in a Letter to the Journal dated August 14, 2008, signed by all  
          authors and co-authors of SB 1608 and submitted to both the  
          Senate and the Assembly.

                                           
                               CHANGES TO EXISTING LAW
           
           1.   Existing law  requires a court, in an action involving a  
            construction-related accessibility claim, to issue an order  
            granting a 90-day stay of the proceedings and scheduling an  
            early evaluation conference, pursuant to a request by a  
            defendant who claims that the premises alleged in the  
            complaint to have been non-compliant with disability access  
            laws had been inspected by a Certified Access Specialist  
            (CASp).  (Civil Code Sec. 55.54.)

             Existing law  requires the court's order pursuant to Sec. 55.54  
            to direct the defendant to file with the court under seal and  
            to serve on all parties a copy of the CASp report at least  
            fifteen (15) days before the date set for the early evaluation  
            conference.  Existing law makes the submitted CASp report  
            subject to a protective court order maintaining the  
            confidentiality of the report. (Civil Code Sec. 55.54(c).)

             This bill  would make the CASp report confidential instead of  
            "under seal."

             This bill  would specify that the CASp report is available only  
            to the court, the parties to the action, the parties'  
            attorneys, those individuals employed or retained by the  
            attorneys to assist in the litigation, and insurance  
            representatives or others necessary to the settlement of the  
            case, unless access is granted by the court upon a showing of  
            good cause by any party.

           2.   Existing law  provides that the court may lift the seal and  
            protective order on a CASp inspection report at the conclusion  
            of the stay or at a later time upon a showing of good cause by  
            any party, and that the seal and protective order terminates  
            upon conclusion of the claim. (Civil Code Sec. 55.54(e)(4).)

             This bill  would instead provide that a CASp inspection report  
            filed with the court shall remain confidential throughout the  
                                                                      



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            stay and for the duration of the litigation until the  
            conclusion of the claim, unless there is a showing of good  
            cause by any party, and shall  terminate upon conclusion of  
            the claim unless the owner of the report obtains a court order  
            sealing the report.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          SB 209 intends to make the stay and early evaluation conference  
          available to defendants in construction-related accessibility  
          litigation less cumbersome for the courts to implement.  During  
          the final weeks of the last legislative session, the Judicial  
          Council and the California Newspaper Publishers Association  
          addressed the burdens and benefits of keeping records under  
          seal, and agreed that making the records confidential instead  
          would serve the purposes and goals of SB 1608.  The authors  
          agreed, but due to the lateness of the session, the authors were  
          unable to amend the bill.  Thus, a Letter to the Journal was  
          submitted.  SB 209 results from the commitment made by the  
          authors to address those concerns.
          
          2.    Keeping CASp inspection reports confidential instead of  
            under seal  

          Under SB 1608, a business that is sued for violations of  
          disability access laws may request a stay of the proceedings and  
          an early evaluation conference (EEC) where the lawsuit may be  
          settled, if the business had been inspected by a certified  
          access specialist (CASp).  The CASp report must be submitted to  
          the court no later than fifteen days prior to the date set for  
          the EEC.  The CASp report  is filed under seal and subject to a  
          protective order maintaining confidentiality of the report until  
          the conclusion of the claim, unless a showing of good cause is  
          made to the court to order the record unsealed.

          Sealing specified records in any proceeding involves the court  
          reviewing those records, extracting them from the  
          publicly-accessible file, and keeping those records separate in  
          a sealed and marked envelope.  To unseal any sealed record, it  
          generally requires a formal application to the court, perhaps a  
          hearing if there is opposition, and another review by the court  
          to determine whether the record should be unsealed or not.   
          Although this process may be a little more onerous than the  
          simple maintenance of a "confidential" portion of a court file,  
                                                                      



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          the real burden of the sealing/unsealing process is on a person  
          who wishes to access the sealed record.  If this person is not a  
          party to the litigation (such as a potential plaintiff who wants  
          to know what the CASp reported vis-?-vis the defendant business  
          entity, or a neighboring business in the same building who wants  
          to know what improvements the CASp-inspected business premises  
          has to make to its premises, or a newspaper reporter who wants  
          to write about ADA-compliant or non-ADA compliant businesses),  
          it is highly unlikely that he or she can get a record unsealed.   
          In other words, the burden is high, once a record is sealed, to  
          unseal the record.  This is why, in certain instances, a sealed  
          record is automatically unsealed at a given point of reference  
          (such as after so many years, or when a juvenile turns 18). 

          Based on concerns raised by those who want to minimize the  
          practice of sealing records and the burden such a process  
          imposes on the courts, SB 209 would instead make the CASp report  
          confidential.  Thus, the CASp report would simply be kept in a  
          file folder separate from the publicly-accessible portion of the  
          court's file, still accessible but only to those specified under  
          SB 209.

          3.    CASp report available to litigants and involved parties,  
            and to others only upon showing of good cause  

          Although the CASp inspection report would become confidential  
          (rather than sealed), SB 209 would allow disclosure of the CASp  
          inspection report to the court, parties to the action, the  
          parties' attorneys, and others necessary to the settlement of  
          the case.  

          The report would remain confidential throughout the stay and for  
          the duration of the litigation, until the conclusion of the  
          claim, whether by dismissal, settlement, or final judgment on  
          the action.  However, it may be disclosed to any party upon  
          petition and a showing of good cause.  Further, under this bill,  
          the confidentiality of the CASp report would terminate upon the  
          conclusion of the claim, making the CASp report available to any  
          member of the public, unless the owner of the report obtains a  
          court order pursuant to the California Rules of Court to seal  
          the report.  


           Support  :  Judicial Council of California; American Federation of  
          State, County and Municipal Employees (AFSCME), AFL-CIO
          
                                                                      



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           Opposition  :  None Known

                                           
                                       HISTORY
           
          Source  :  Authors

           Related Pending Legislation  :  None Known

           Prior Legislation  :  SB 1608 (Corbett et al., Ch. 549, Stats.  
          2008).  (See Background.)


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