BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 209|
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CONSENT
Bill No: SB 209
Author: Corbett (D) & Harman (R)
Amended: As introduced
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 3/31/09
AYES: Corbett, Harman, Florez, Leno, Walters
SUBJECT : Civil actions: access by persons with
disabilities
SOURCE : Authors
DIGEST : This bill requires a Certified Access Specialist
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 specifies who
would have access to the Certifies Access Specialist
inspection report and when confidentiality of the report
would terminate.
ANALYSIS :
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
CONTINUED
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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 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 makes the CASp report confidential instead of
"under seal."
This bill specifies 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.
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 instead provides that a CASp inspection report
filed with the court shall remain confidential throughout
the 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.
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
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that attempt to comply with federal and state disability
access laws. (SB1608 [Corbett et al.], Chapter 549,
Statutes of 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.
This bill is a follow-up bill to address some issues,
raised by the Judicial Council and the California Newspaper
Publishers 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.
Prior legislation
SB1608 (Corbett, et al), Chapter 549, Statutes of 2008 (see
background).
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 4/1/09)
American Federation of State, County and Municipal
Employees, AFL-CIO
Judicial Council of California
ARGUMENTS IN SUPPORT : According to the author's office,
this bill 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
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of keeping records under seal, and agreed that making the
records confidential instead serves the purposes and goals
of SB 1608. The author's office agreed, but due to the
lateness of the session, the author's office was unable to
amend the bill. Thus, a Letter to the Journal was
submitted. This bill results from the commitment made by
the author's office to address those concerns.
RJG:do 4/1/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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