BILL NUMBER: SB 1186	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 30, 2012

INTRODUCED BY    Senator   Dutton 
 Senators   Steinberg   and Dutton 

                        FEBRUARY 22, 2012

    An act to add Sections 55.4 and 55.41 to the Civil Code,
and to amend Section 4452 of the Government Code, relating to special
access, and declaring the urgency thereof, to take effect
immediately.  An act to amend Section 55.3 of, and to
add Sections 55.31 and 1938 to, the Civil Code, relating to
disability access. 



	LEGISLATIVE COUNSEL'S DIGEST


   SB 1186, as amended,  Dutton   Steinberg
 .  Special   Disability  access:
liability. 
   Existing law requires an attorney to provide a written advisory to
a building owner or tenant with each demand for money or complaint
for any construction-related accessibility claim, as specified. The
requirement to provide the written advisory applies whether or not
the attorney intends to file a complaint or eventually files a
complaint in state or federal court. A violation of this requirement
may subject the attorney to disciplinary action.  
   This bill would, instead, require an attorney to provide a written
advisory to a building owner or tenant with each complaint or
settlement demand for any construction-related accessibility claim,
as specified. The requirement to provide the written advisory would
apply where the attorney or party has filed a complaint in state or
federal court on the basis of one or more construction-related
accessibility claims.  
   This bill also would prohibit an attorney or other person from
issuing a demand for money to a building owner or tenant, or an agent
or employee of a building owner or tenant, or from receiving any
payment, settlement, compensation, or other remuneration pursuant to
a demand for money that is provided or issued without or prior to the
filing of a complaint on the basis of one or more
construction-related accessibility violations, as specified. The bill
would require an attorney to provide to a building owner or tenant,
or an agent or employee of a building owner or tenant, a document
that notifies the recipient of any alleged construction-related
accessibility violation that may be a basis for a damages claim at
least 30 days prior to filing any claim for damages based on an
alleged construction-related accessibility violation or violations,
except in a case solely seeking injunctive relief. The bill would
provide that a violation of these requirements may subject the
attorney to disciplinary action.  
   Existing law requires the State Architect to develop and submit
for approval and adoption building standards for making buildings,
structures, sidewalks, curbs, and related facilities accessible to,
and usable by, persons with disabilities, as specified. Existing law
provides for the inspection of places of public accommodation by
certified access specialists to determine if the sites meet all
applicable construction-related accessibility standards, and the
provision of specified certificates and reports regarding those
inspections. Existing law regulates the hiring of real property.
 
   This bill would require a commercial property owner to state on a
lease form or rental agreement if the property being leased or rented
has been inspected by a certified access specialist.  
   Under existing law, a person, firm, or corporation that interferes
with the access rights of a disabled individual is liable for the
actual damages of each offense and any amount determined by a judge
or jury of up to 3 times the amount of the actual damages, but in no
case less than $1,000. Existing law requires the State Architect to
develop and submit for approval and adoption building standards for
making buildings, structures, sidewalks, curbs, and related
facilities accessible to, and usable by, persons with disabilities,
as specified.  
   This bill would establish notice requirements for an alleged
aggrieved party to follow before bringing an action against a
business for an alleged violation of the above-described provisions.
The bill would require that party to provide specified notice to the
owner of the property, agent, or other responsible party where the
alleged violation occurred. The bill would require that owner, agent,
or other responsible party to respond within 30 days with a
description of the improvements to be made or with a rebuttal to the
allegations, as specified. If that owner, agent, or other responsible
party elects to fix the alleged violation, the bill would provide 90
days to do so. The bill would provide that its provisions do not
apply to claims for recovery of special damages for an injury in
fact, and would authorize the court to consider previous or pending
actual damage awards received or prayed for by the alleged aggrieved
party for the same or similar injury. The bill would further state
the intent of the Legislature to institute certain educational
programs related to special access laws.  
    This bill would declare that it is to take effect immediately as
an urgency statute. 
   Vote:  2/3   majority  . Appropriation:
no. Fiscal committee: no. State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 55.3 of the   Civil
Code   is amended to read: 
   55.3.  (a) For purposes of this section, the following shall
apply:
   (1) "Complaint" means a civil complaint that is filed  or
is to be filed  with a court and is sent to or served upon a
defendant on the basis of one or more construction-related
accessibility claims, as defined in this section.
   (2)  "Demand for money"   "Settlement demand"
 means a written document  or oral statement  that is
provided to a building owner or tenant, or an agent or employee of a
building owner or tenant, that contains a request for money on the
basis of one or more construction-related accessibility claims, as
defined in paragraph (3),  whether or not the attorney
intends to file   where the attorney or party has filed
 a complaint or eventually files a complaint in state or federal
court  on the basis of one or more construction-related
accessibility claims  .
   (3) "Construction-related accessibility claim" means any claim of
a violation of any construction-related accessibility standard, as
defined by paragraph (6) of subdivision (a) of Section 55.52, with
respect to a place of public accommodation. "Construction-related
accessibility claim" does not include a claim of interference with
housing within the meaning of paragraph (2) of subdivision (b) of
Section 54.1, or any claim of interference caused by something other
than the construction-related accessibility condition of the
property, including, but not limited to, the conduct of any person.
   (b) An attorney shall provide a written advisory with each
 demand for money or  complaint  or settlement
demand  sent to or served by him or her upon a defendant, in the
form described in subdivision (c), and on a page or pages that are
separate and clearly distinguishable from the  demand for
money or  complaint  or settlement demand  , as
follows:

      IMPORTANT INFORMATION FOR BUILDING OWNERS AND TENANTS

   This form is available in English, Spanish, Chinese, Vietnamese,
and Korean through the Judicial Council of California. Persons with
visual impairments can get assistance in viewing this form through
the Judicial Council Internet Web site at 
http://www.courtinfo.ca.gov   www.courts.ca.gov .
   Existing law requires that you receive this information because
the  demand for money or  complaint  or
settlement demand  you received with this document claims that
your building or property does not comply with one or more existing
construction-related accessibility laws or regulations protecting the
civil rights of persons with disabilities to access public places.
   YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability
access laws is a serious and significant responsibility that applies
to all California building owners and tenants with buildings open for
business to the public. You may obtain information about your legal
obligations and how to comply with disability access laws through the
Division of the State Architect.  Commencing September 1,
2009, information will also be available from the California
Commission on Disability Access Internet Web site.  
Information is also available from the California Commission on
Disability Access at www.ccda.ca.gov/guide.htm. 
   YOU HAVE IMPORTANT LEGAL RIGHTS. You are not required to pay any
money unless and until a court finds you liable. Moreover, RECEIPT OF
THIS ADVISORY DOES NOT NECESSARILY MEAN YOU WILL BE FOUND LIABLE FOR
ANYTHING.
   You may wish to promptly consult an attorney experienced in this
area of the law to get helpful legal advice or representation in
responding to the  demand for money or  complaint
 or settlement demand  you received. You may contact the
local bar association in your county for information on available
attorneys in your area. If you have insurance, you may also wish to
contact your insurance provider. You have the right to seek
assistance or advice about this  demand for money or
 complaint  or settlement demand  from any person
of your choice, and no one may instruct you otherwise. Your best
interest may be served by seeking legal advice or representation from
an attorney.
   If a complaint has been filed and served on you and your property
has been inspected by a Certified Access Specialist (CASp; see
 www.dsa.dgs.ca.gov/casp)  
www.dgs.ca.gov/dsa/Programs/programCert/casp.aspx  , you may
have the right to a court stay (temporary stoppage) and early
evaluation conference to evaluate the merits of the
construction-related accessibility claim against you pursuant to
Civil Code Section 55.54. At your option, you may be, but need not
be, represented by an attorney to file a reply and to file an
application for a court stay and early evaluation conference. If you
choose not to hire an attorney to represent you, you may obtain
additional information about how to represent yourself and how to
file a reply without hiring an attorney through the Judicial Council
Internet Web site at  http://www.courtinfo.ca.gov/selfhelp/
    www.courts.ca.gov/selfhelp-start.htm 
. You may also obtain a form to file your reply to the lawsuit, as
well as the form and information for filing an application to request
the court stay and early evaluation conference at that same Web
site.
   If you choose to hire an attorney to represent you, the attorney
who sent you the  demand for money or  complaint
 or settlement demand  is prohibited from contacting you
further unless your attorney has given the other attorney permission
to contact you. If the other attorney does try to contact you, you
should immediately notify your attorney.


   (c) On or before July 1, 2009, the Judicial Council shall adopt a
form that may be used by attorneys to comply with the requirements of
subdivision (b). The form shall be in substantially the same format
and include all of the text set forth in subdivision (b). The form
shall be available in English, Spanish, Chinese, Vietnamese, and
Korean, and shall include a statement that the form is available in
additional languages, and the Judicial Council Internet Web site
address where the different versions of the form may be located. The
form shall include Internet Web site information for the Division of
the State Architect and  , when operational,  the
California Commission on Disability Access.
   (d) Subdivision (b) shall apply  only  to a
 demand for money or  complaint  or settlement
demand  made by an attorney. Nothing in this section is intended
to affect the right to file a civil complaint under any other law or
regulation protecting the physical access rights of persons with
disabilities.  Additionally, nothing in this section requires
a party acting in propria persona to provide or send a demand for
money to another party before proceeding against that party with a
civil complaint. 
   (e) This section shall not apply to any action brought by the
Attorney General, or by any district attorney, city attorney, or
county counsel.
   SEC. 2.    Section 55.31 is added to the  
Civil Code   , to read:  
   55.31.  (a) "Demand for money" means a written document or oral
statement that is provided or issued to a building owner or tenant,
or an agent or employee of a building owner or tenant, that meets all
of the following requirements:
   (1) Alleges one or more construction-related accessibility
violations as the basis of one or more construction-related
accessibility claims, as defined in paragraph (3) of subdivision (a)
of Section 55.3.
   (2) Contains or makes a request for money, or states or implies
that the building owner or tenant is liable for damages or attorney's
fees, or both, on the basis of one or more construction-related
accessibility violations.
   (3) Is provided or issued without or prior to the filing of a
complaint in state or federal court on the basis of one or more
construction-related accessibility violations.
   (b) An attorney or person shall not issue a demand for money to a
building owner or tenant, or an agent or employee of a building owner
or tenant, or receive any payment, settlement, compensation or other
remuneration pursuant to a demand for money, as defined in
subdivision (a).
   (c) An attorney shall provide to a building owner or tenant, or an
agent or employee of a building owner or tenant, a document that
notifies the recipient of any alleged construction-related
accessibility violation that may be a basis for a damages claim at
least 30 days prior to filing any claim for damages based on an
alleged construction-related accessibility violation or violations.
Nothing in this document or any document accompanying the document
shall demand or request any money to settle or forgo a claim or
potential claim for damages based upon an alleged violation or
violations, or state or imply the building owner's or tenant's
liability for damages or attorney's fees, or both, on the basis of
the alleged construction-related accessibility violation or
violations identified in the notice. This requirement shall apply
whether the attorney intends to file in state or federal court. This
subdivision shall not apply in a case solely seeking injunctive
relief.
   (d) A violation of subdivision (b) or (c) shall be cause for the
imposition of disciplinary action against an attorney. 
   SEC. 3.    Section 1938 is added to the  
Civil Code   , to read:  
   1938.  A commercial property owner shall state on the lease form
or rental agreement if the property being leased or rented "is
CASp-Inspected" or "is not CASp-inspected." For the purpose of this
section, "CASp-inspected" is defined in paragraph (4) of subdivision
(a) of Section 55.52. 
   SEC. 4.    It is the intent of the Legislature to do
all of the following:  
   (a) Examine the federal and state laws that provide persons with
disabilities the right to full and equal access to places of public
accommodation, and to address any conflict between those laws in
construction-related accessibility standards that may lead to
unnecessary litigation.  
   (b) Facilitate compliance by increased education regarding the
accessibility laws, including requiring the California Commission on
Disability Access to develop tools for use by businesses and building
inspectors, and to post those tools on its public Internet Web site
to facilitate greater compliance.  
   (c) Examine measures that would lead to greater compliance, to the
benefit of both business and the disability community through
reducing litigation and improving access for the disabled, without
discouraging early compliance efforts and without affecting the right
to sue for uncorrected and other violations. This effort shall
examine and address issues many small businesses face from litigation
and tactics pursued primarily for private gain under the state and
federal disability access laws, rather than to rectify a disability
access violation.  All matter omitted in this version of the
bill appears in the bill as introduced in the Senate, February 22,
2012. (JR11)