BILL ANALYSIS
SB 209
Page 1
Date of Hearing: June 23, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 209 (Corbett and Harman) - As Amended: June 3, 2009
PROPOSED CONSENT (As Proposed to be Amended)
SENATE VOTE : 36-0
SUBJECT : Civil Actions: Access by Persons with Disabilities
KEY ISSUE : SHOULD the confidentiality of inspection reports
filed in CERTAIN disability access cases be clarified?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This is a non-controversial technical clean-up to last year's SB
1608 by the authors. The 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 remain confidential rather than be under seal and
subject to protective order, which is a more cumbersome and
complicated procedure than is needed to protect against
potential abuse of CASp reports. The bill would specify who
would have access to the CASp report and when confidentiality of
the report would terminate. There is no known opposition.
SUMMARY : Clarifies the confidentiality of disability access
inspection reports filed with the court. Specifically, t his
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 involved
in the evaluation and settlement of the case, unless the court
otherwise allows upon a showing of good cause.
EXISTING LAW :
1)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
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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 Section 55.54.)
2)Requires the court 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.
3)Makes the submitted CASp report subject to a protective court
order maintaining the confidentiality of the report. (Civil
Code Section 55.54(c).)
4)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 terminate upon conclusion
of the claim. (Civil Code Section 55.54(e)(4).)
COMMENTS : Last year's SB 1608 by the authors created the
California Commission on Disability Access, required certain
building inspections 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) for the purpose of evaluating and
attempting to resolve the complaint (if possible) when the
business has previously been inspected by a CASp.
SB 209 is a follow-up bill to address 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. Although these issues were
raised too late for inclusion in the final version of the bill,
they 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.
Keeping CASp Inspection Reports Confidential Instead Of Under
Seal. SB 209 makes the stay and early evaluation conference
available to defendants in construction-related accessibility
litigation less cumbersome for the courts to implement while
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continuing to serve the purposes and goals of SB 1608.
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,
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 provide that the
CASp report is to remain 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. As
appropriate, SB 209 would allow disclosure of the CASp
inspection report to the court, parties to the action, the
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parties' attorneys, and others involved in the evaluation and
settlement of the case.
The report would remain confidential throughout the stay until
the conclusion of the claim, whether by dismissal, settlement,
or final judgment on the action. However, it may be disclosed
upon a showing of good cause. 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.
Authors' Technical Amendments . In order to correct drafting
errors, the authors' prudently propose the following technical
amendments:
Strike references to the term "protective order" on the
statutory forms in light of the deletion of that term from the
statute.
(d) (4) Directs the defendant to file with the court and serve
on the plaintiff a copy of any relevant CASp inspection report
at least 15 days before the date of the conference The CASp
inspection report is confidential and is available only as set
forth in paragraph (5) of this subdivision or and in paragraph
(4) of subdivision (e).
(5) Directs the parties that the CASp inspection report may be
disclosed only to the court, the parties to the action, the
parties' attorneys, those individuals employed or retained by
the attorneys to assist in the litigation, and insurance
representatives or others necessary to involved in the
evaluation and settlement of the case.
(e) (4) The CASp inspection report filed and served pursuant to
subdivision (d) shall remain confidential throughout the stay
and shall continue to be confidential for the duration of the
litigation, until the conclusion of the claim, whether by
dismissal, settlement, or final judgment, unless there is a
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showing of good cause by any party. Good cause may include the
defendant's failure to make reasonably timely progress toward
completion of corrections noted by a CASp. The confidentiality
of the inspection report shall terminate upon the conclusion of
the claim, unless the owner of the report obtains a court order
pursuant to the California Rules of Court to seal the record.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State County and Municipal Employees
(AFSCME), AFL-CIO
Judicial Council of California
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334