BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          SB 1186 (Steinberg & Dutton)
          As Amended August 30, 2012
          Hearing Date: August 31, 2012
          Fiscal: Yes
          Urgency: Yes
          NR
                    

                            PURSUANT TO SENATE RULE 29.10
                                           
                                       SUBJECT
                                           
                            Disability Access: Liability

                                      DESCRIPTION  

          This bill would reduce statutory damages and provide litigation 
          protections for specified defendants who timely correct 
          construction-related accessibility violations of the Unruh Civil 
          Rights Act.  Specifically, this bill would: 
           Cap statutory damages at $1,000, instead for $4,000, for any 
            defendant who corrected all violations in the claim within 60 
            days of being served the complaint and was either (1) a 
            defendant who had hired a certified access specialist (CASp) 
            and met all applicable compliance standards, or (2) a person 
            who had new construction or an improvement approved by the 
            local building department on or after January 2008. 
           Allow a small business defendant, as specified, to have 
            minimum statutory damages reduced to $2,000 when that 
            defendant corrects the violation within 30 days of being 
            served the complaint. 
           Allow any one of these defendants who promises to correct the 
            violation within the specified time period to request an early 
            evaluation conference (EEC) and grant that defendant an 
            immediate stay of the proceedings. 

          Additionally, this bill would require the court, in assessing 
          statutory damages in a construction-related accessibility claim, 
          to consider the reasonableness of the plaintiff's conduct in 
          light of the plaintiff's obligation to mitigate damages in any 
          action alleging multiple claims for the same 
                                                                (more)



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          construction-related accessibility violation on different 
          particular occasions.  












































                                                                      



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          This bill would also: 
           ban prelitigation "demands for money" and create rules for 
            demand letters and complaints in claims involving 
            construction-related accessibility violations;  
           require any demand letter or complaint asserting a 
            construction related accessibility claim to contain facts 
            sufficient to allow the defendant to identify the basis for 
            the claim, including an explanation of the specific access 
            barrier the claimant encountered, and the date(s) of the 
            violation(s);
           require any demand letter alleging a construction-related 
            accessibility violation to be sent to the State Bar and the 
            California Commission on Disability Access (CCDA), as 
            specified;   
           allow either party to request a mandatory evaluation 
            conference (MEC) to be conducted by the court within 120 to 
            180 days of the request;  
           require a property owner and/or lessor to notify the tenant, 
            for any property leased after January 1, 2013, if the property 
            has undergone a CASp inspection, and if so, whether the 
            property meets all applicable construction-related standards;
           require the CCDA to promote and facilitate accessibility 
            compliance, as specified; and
           require cities and counties to inform business licensees of 
            their responsibilities to comply with accessibility laws, as 
            specified, and promote compliance by sharing information 
            regarding how to comply. 

          Finally, this bill would add $1 to business license fees and 
          similar instruments to pay for more local CASp, reduce costs of 
          CASp testing and certification, and strengthen the CASp program, 
          as specified.  These collected monies would be split between 
          local public entities and the Division of the State Architect, 
          as specified. This bill would contain Legislative intent 
          language, as specified.

                                      BACKGROUND
                                           
          Since 1969, persons with disabilities have enjoyed protection 
          under Civil Code
          Sections 54 and 54.1, which entitle individuals with 
          disabilities and medical conditions to full and free access to 
          and use of roadways, sidewalks, buildings and facilities open to 
          the public, hospitals and medical facilities, and housing. After 
          Congress enacted the Americans with Disabilities Act (ADA) in 
          1990, the state made a violation of the ADA also a violation of 
                                                                      



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          Section 54 or 54.1.  The state protections provided to disabled 
          persons are comparatively higher than those provided under the 
          ADA and are independent of the ADA.  

          Additionally, under the Unruh Civil Rights Act, 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 whatsoever. (Civil Code Sec. 51.)  A violation of the ADA 
          also constitutes a violation of Section 51.  A violation of this 
          section subjects a person to actual damages incurred by an 
          injured party, plus treble actual damages, but in no event less 
          than $4,000, and any attorney's fees as the court may determine 
          to be proper. (Civil Code Sec. 52.)

          The California Legislature has taken further steps to ensure 
          disability access laws are complied with.  SB 262 (Kuehl, 
          Chapter 872, Statutes of 2003) established in the Division of 
          the State Architect, a voluntary "access specialist 
          certification program" in order to assist business and property 
          owners to comply with ADA and state access laws.  The bill also 
          authorized an enforcement action with civil penalties for 
          noncompliance with the ADA and state access laws, after 
          notification of the business owner or operator by a government 
          agency.  The authority to institute a civil action was extended 
          to county counsels (in addition to the Attorney General, 
          district attorney, and city attorney). 

          In 2003 and 2005, several bills were introduced after multiple 
          lawsuits were filed in state court by a few plaintiffs and 
          attorneys against business owners and operators for allegedly 
          technical violations of the state's access or ADA regulations. 
          (SB 69 (Oller, 2003), AB 209 (Leslie, 2003), AB 20 (Leslie, 
          2005), SB 855 (Poochigian, 2005).)  Three of those bills would 
          have required pre-litigation procedures for a plaintiff to 
          undertake prior to the filing of a complaint, including notice 
          to the owner of the property or business of the alleged 
          violations, and would have provided a specified time period for 
          the owner or business to cure the violations.  One bill (AB 20) 
          would have precluded an action for damages for a de minimus 
          violation, allowing only injunctive relief and attorney's fees.  
          All of those bills failed passage in the Judiciary Committees of 
          their respective houses.

          In 2008, two bills were introduced relating to disability 
                                                                      



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          access. AB 2533 (Keene, 2008), SB 1766 (McClintock, 2008) would 
          have both imposed prelitigation hurdles on plaintiffs claiming 
          violations of construction-related disability access laws.  Both 
          of these bills failed in the Judiciary Committees of their 
          respective houses.  In 2011, SB 783 (Dutton, 2011) would have 
          established notice requirements for an aggrieved party to follow 
          before he or she can bring a disability access suit and given 
          the business owner a 120-day time period to remedy the 
          violation.  That bill failed passage in this Committee. 

          Alternatively, SB 1608 (Corbett et al., Ch 549, Stats. 2008), 
          which took effect January 1, 2009, did not create any 
          pre-litigation hurdles for a person with a disability but 
          instead, among other things, provided for an early evaluation of 
          a filed complaint if the defendant is a qualified defendant who 
          had the identified place of public accommodation inspected and 
          determined to meet applicable physical access standards by a 
          state Certified Access Specialist (CASp) prior to the filing of 
          the complaint.  

          This bill seeks to further address the issue by enacting a 
          comprehensive package of disability litigation reforms.  When 
          first heard in this Committee, this bill also contained language 
          indicating the intent of the Legislature to examine the state 
          and federal access laws, to facilitate compliance with these 
          laws through increased education, and to examine measures that 
          would lead to greater compliance to the benefit of both the 
          business and the disability communities.  Accordingly, the 
          contents of SB 1186 relating to disability access that were 
          heard and passed by this Committee on May 8, 2012 have been 
          largely amended to effectuate that Legislative intent.  

                                CHANGES TO EXISTING LAW
           
           Existing federal law  , 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. Sec. 12182.)

           Existing law  provides 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 
                                                                      



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          hospitals, clinics and physicians' offices, public facilities 
          and other public places.  It also provides that a violation of 
          an individual's rights under the ADA constitutes a violation of 
          state law.  (Civ. Code Sec. 54.)

           Existing law  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.  It further provides that individuals with disabilities 
          shall be entitled to full and equal access to all housing 
          accommodations offered for rent or lease, subject to conditions 
          and limitations established by law. (Civ. Code Sec. 54.1.)  

           Existing law  provides that a violation of the ADA also 
          constitutes a violation of Section 54.1.  A violation of Section 
          54.1 subjects a person to actual damages, plus treble actual 
          damages but not less than $1,000, and attorney's fees as the 
          court deems proper. (Civ. Code Sec. 55.)

           Existing law  , the Unruh Civil Rights Act, declares 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 whatsoever.  A violation of the ADA also constitutes a 
          violation of Unruh.  A violation of this section subjects a 
          person 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 Sec. 51 et 
          seq.)  

           Existing law  establishes the California Commission on Disability 
          Access (CCDA), an independent state agency composed of 19 
          members, with the general responsibility for monitoring 
          disability access compliance in California, and making 
          recommendations to the Legislature for necessary changes in 
          order to facilitate implementation of state and federal laws on 
          disability access. (Gov. Code Sec. 8299 et seq.)
           
          Existing law  requires an attorney, when serving a demand for 
          money letter or a complaint on a defendant, to include a written 
          advisory to the defendant of the defendant's rights and 
          obligations, including the right of a qualified defendant to 
          request a stay and an early evaluation conference regarding the 
          allegations in the complaint.  This written advisory is not 
                                                                      



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          required from a pro per plaintiff.  (Civ. Code Sec. 55.3.)

           Existing law  defines terms for a disability access action, 
          specifically, existing law:
           defines a qualified defendant as a defendant in an action that 
            includes an accessibility claim against a place of public 
            accommodation that has been inspected by a certified access 
            specialist (CASp), and determined to meet applicable 
            construction-related accessibility standards, or is pending a 
            determination by a CASp;
           defines a certified access specialist whose inspection report 
            would be the basis for a defendant to qualify for the early 
            evaluation conference;
           defines the construction-related accessibility standard that a 
            CASp would use to inspect and prepare a report on the place of 
            public accommodation. With respect to this standard, the bill 
            would provide that standards adopted in state law would be 
            used unless standards under federal law are higher; and
           enumerates the duties of the CASp with respect to the 
            inspection, the corrections that may need to be made to the 
            site, written inspection report, and the statement of 
            compliance, including the issuance, upon completion of the 
            inspection and a determination that the site meets applicable 
            construction-related accessibility standards, of a specified, 
            watermarked, and sequentially numbered disability access 
            certificate that may be displayed at the site.  (Civ. Code 
            Sec. 55.52.)

           Existing law  provides that if a CASp determines that a site 
          meets all applicable construction-related accessibility claims 
          the CASp must provide a written inspection report to the 
          requesting party that includes specified information.  If the 
          CASp determines that corrections are needed to the site in order 
          for it to meet all applicable construction-related accessibility 
          standards, the CASp must provide a written inspection report to 
          the requesting party that identifies the needed corrections and 
          a schedule for completion.  (Civ. Code Sec. 55.53.)

           Existing law  requires every CASp who completes an inspection of 
          a site to provide the owner or tenant with a disability access 
          inspection certificate if the site either meets applicable 
          construction-related accessibility standard or is a CASp 
          determination pending site.  Existing law permits the building 
          owner or tenant to post the certificate on the premises unless, 
          after the date of inspection, the inspected site has been 
          modified or construction has commenced to modify the inspected 
                                                                      



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          site in a way that may impact compliance with 
          construction-related accessibility standards. (Civ. Code Sec. 
          55.53.)











































                                                                      



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           Existing law  outlines the specific process to be followed when 
          filing a disability access claim:
           specifies the contents of the request and includes a link to 
            the Judicial Council of California's Web site to access the 
            appropriate court forms;
           provides that a qualified defendant may file an application 
            requesting an early evaluation conference (EEC) after the 
            defendant is served with the summons and complaint within 30 
            days of receiving the summons and complaint;
           grants qualified defendants a 90-day stay of the proceedings 
            with respect to the construction-related accessibility claims, 
            unless the plaintiff has obtained temporary injunctive relief;
           requires a mandatory EEC to be scheduled no later than 50 days 
            after issuance of the order but no earlier than 21 days after 
            the request is filed;
           directs the parties to appear in person at the time set for 
            the conference;
           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 prior to the date of the EEC;
           directs the plaintiff to file with the court and serve on the 
            defendant, at least 15 days prior to the date of the EEC, a 
            statement containing, to the extent reasonably known, an 
            itemized list of the alleged violations, the amount of damages 
            claimed, the amount of attorney's fees and costs claimed, and 
            any demand for settlement of the case in its entirety;
           specifies that the court shall lift the stay when defendant 
            has failed to file and serve the CASp inspection report when 
            required and also did not produce the report at the EEC, 
            unless good cause for the failure is shown;
           specifies that the court may lift the stay at the conclusion 
            of the EEC upon a showing of good cause by the plaintiff;
           specifies the court's authority to schedule additional 
            conferences or to extend the stay for no more than an 
            additional 90 days, upon a showing of good cause; and
           specifies the determinations the court would make at the EEC.  
            (Civ. Code Sec. 55.54.)

           Existing law  provides that the stay and early evaluation 
          conference shall not be deemed to make any inspection report or 
          opinion of a CASp binding on the court or to abrogate the 
          court's authority to make appropriate findings of fact and law. 
          (Civ. Code Sec. 55.54.)

           Existing law  provides that the stay and early evaluation 
          conference shall not be construed to invalidate or limit any 
                                                                      



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          California construction-related accessibility standard that 
          provides greater or equal protection for the rights of persons 
          with disabilities than is afforded by the ADA and the federal 
          regulations adopted pursuant to that act. (Civ. Code Sec. 
          55.54.)
           
          Existing law  provides that, notwithstanding the requirement that 
          offers of compromise are privileged and protected under Evidence 
          Code Section 1152, the court may consider, along with other 
          relevant information, settlement offers made and rejected by the 
          parties, in determining an award of reasonable attorney's fees 
          and recoverable costs in any construction-related accessibility 
          claim. (Civ. Code Sec. 55.55.)

           Existing law  provides that statutory damages may be recovered in 
          a construction-related accessibility claim only if a violation 
          or violations of one or more construction-related accessibility 
          standards denied the plaintiff full and equal access to the 
          place of public accommodation on a particular occasion.  
          Existing law specifies that a plaintiff is denied full and equal 
          access only if he or she personally encountered the violation on 
          a particular occasion or was deterred from accessing the public 
          accommodation on a particular occasion.  (Civ. Code Sec. 55.56.)
          
           This bill  would reduce a defendant's minimum liability for 
          statutory damages in a construction-related accessibility claim 
          against a place of public accommodation as follows: 
           to $1,000 for each violation if the defendant has corrected 
            all construction-related violations that are the basis of the 
            claim within 60 days of being served with the complaint and is 
            either determined to be "CASp-inspected" or to "meet 
            applicable standards", and there were no modifications or 
            alterations that impacted compliance after the date of that 
            determination; or 
           to $1,000 for each violation if the defendant has corrected 
            all construction-related violations that are the basis of the 
            claim within 60 days of being served with the complaint and 
            the structure or area of alleged violation was new 
            construction or improvement that was approved and passed by 
            the local building department after January 1, 2008, as 
            specified; or 
           to $2,000 for each offense if the defendant has corrected all 
            construction-related violations that are the basis of the 
            claim within 30 days of being served with the complaint and 
            the defendant is a small business, as specified.

                                                                      



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           This bill  would provide that defendants who meet the above 
          criteria would be eligible for a mandatory stay of the 
          proceedings and an early evaluation conference. 
           
          This bill  would require the court, in assessing liability in any 
          action alleging multiple claims for the same 
          construction-related accessibility violation on different 
          particular occasions, to consider the reasonableness of the 
          plaintiff's conduct in light of the plaintiff's obligation, if 
          any, to mitigate damages.
          
           This bill  would require an allegation of a construction-related 
          accessibility claim in a demand letter or complaint to state 
          facts sufficient to allow the defendant to identify the basis 
          for the claim, including a plain language explanation of the 
          specific access barrier(s) encountered or by which the plaintiff 
          was deterred, with sufficient information to enable the 
          defendant to identify that barrier. 
           
          This bill  would require that the plaintiff verify any complaint 
          asserting a construction-related accessibility claim. 

           This bill  would define "demand letter" and require an attorney 
          to provide a written advisory informing the potential defendant 
          of his or her obligations and rights under the law with each 
          demand letter or complaint, as defined, sent to or served upon a 
          defendant for any construction-related accessibility claim. This 
          bill would require the Judicial Council to update the form 
          containing the advisory notice by July 1, 2013.
          
           This bill  would define "demand for money" and prohibit 
          prelitigation demands for money from, or at the direction of, an 
          attorney including requests or demands for money, or 
          offers/agreements to accept money.  With respect to potential 
          monetary damages, this bill would provide that a demand letter 
          may only state, " The property owner or tenant, or both, may be 
          civilly liable for actual and statutory damages for a violation 
                                                                                      of a construction-related accessibility requirement."
          
           This bill  would require an attorney to include his or her State 
          Bar license number in a demand letter, and, with the exception 
          of legal services providers, to submit copies of the demand 
          letter and complaints to the California Commission on Disability 
          Access (CCDA) and demand letters to the State Bar, until January 
          1, 2016. The bill would provide that a violation of this 
          requirement may subject the attorney to disciplinary action by 
                                                                      



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          the State Bar commencing on January 1, 2013.  
          
           This bill  would require the State Bar, commencing July 31, 2013, 
          and annually each July 31 thereafter, to report specified 
          information to the Legislature regarding the types and 
          frequencies of the demand letters it receives. 
          
           This bill  would modify the duties and powers of the CCDA, as 
          specified, and eliminate the biennial reporting requirement. The 
          bill would instead provide that a priority of the CCDA is the 
          development and dissemination of educational materials and 
          information to promote and facilitate disability access 
          compliance, including a requirement that the CCDA work with the 
          Division of the State Architect (DSA) and the Department of 
          Rehabilitation to develop educational materials for use by 
          businesses. 

           This bill  would require the CCDA to compile data with respect to 
          any demand letter or complaint and post that information on its 
          Web site. The bill would also require the CCDA to post 
          educational materials and information to assist business owners 
          with compliance on its Web site. The bill would require the CCDA 
          to report findings and data to the Legislature.
          
           This bill  would require the Department of General Services to 
          make a biannual adjustment to financial criteria defining a 
          small business for these purposes, and to post those adjusted 
          amounts on its Web site.
          
           This bill  would require a commercial property owner to state on 
          a lease form or rental agreement executed on or after July 1, 
          2013, if the property being leased or rented has undergone 
          inspection by a CASp and the results of that inspection.
          
           This bill  would authorize a defendant who does not qualify for 
          an early evaluation conference pursuant to these provisions, or 
          who forgoes those provisions, to request a mandatory evaluation 
          conference, as specified. The bill would authorize a plaintiff 
          to make that request if the defendant does not make that 
          request.
          
           This bill  would require the State Architect, in administering 
          CASp program, to periodically review its schedule of fees for 
          certification under the program to ensure that the fees are not 
          excessive. The bill would prohibit the State Architect from 
          charging a California licensed architect, landscape architect, 
                                                                      



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          civil engineer, or structural engineer, an application fee for 
          certification that exceeds $250.
          
           This bill  would require cities and counties to collect a $1 fee 
          upon issuance or renewal of a business license or similar 
          instrument to pay for more CASp in local building departments, 
          reduce costs of CASp testing and certification, encourage more 
          private CASp, and strengthen the CASp program by enabling the 
          DAS to develop procedures to maintain quality controls and 
          develop best practices for the CASp program.  The monies 
          collected would be divided between local public entities and the 
          DAS, as specified.  

           This bill  would also Legislative declarations and findings. 
          
                                        COMMENT
           
           1.Stated need for the bill
           
          Senator Steinberg, joint author of this bill writes:

             SB 1186 is a compromise that applies a common sense approach 
             to resolve difficult issues.  It maintains the hard-fought 
             civil rights of the disabled community while helping to 
             protect California businesses from predatory demand for money 
             letters and lawsuits. Support for important laws like the 
             Unruh Act and the Americans with Disabilities Act are 
             weakened when those laws are abused for personal gain.  This 
             measure bans the unscrupulous practice of 'demand for money' 
             letters, stops the stacking of claims based on alleged repeat 
             violations to force a business into a quick settlement, while 
             encouraging businesses to fix their violations to comply with 
             the law.  Thus, SB 1186 provides some relief to businesses 
             who show good faith in trying to follow the law and are 
             willing to correct the violation, which ultimately promotes 
             compliance and brings greater access to the disabled 
             community.

          Senator Dutton, joint author of this bill writes: 

             SB 1186 is the culmination of months of hard work with staff 
             and all the various stakeholders in the community.  ŬThe 
             bill] will not only provide a reasonable amount of time for 
             small businesses to fix minor infractions, but will also help 
             expand the California Access Specialist Program in California 
             and provide any more tools for businesses to comply with this 
                                                                      



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             vital civil rights law. 

           2.Qualified defendants would be eligible for reduced statutory 
            damages and specified procedural benefits

           This bill would reduce statutory damages and grant certain 
          procedural benefits to qualified defendants for non-intentional 
          violations of construction-related accessibility laws.  In order 
          to avail themselves of these advantages, a defendant must 
          establish that he or she has corrected the alleged violation 
          within 30 or 60 days of being served with the complaint, 
          depending on the defendant.  

          The author contends that the policy goal of this provision is to 
          incentivize property owners to correct their violations, as 
          opposed to settling the case and doing nothing, by reducing the 
          minimum statutory damages and potential attorney's fees award to 
          the plaintiff when they correct the violation. 

              a)   Three types of qualified defendants
                
               The first type of qualified defendant under this bill would 
               be a defendant who had hired a certified access specialist 
               (CASp) and met applicable compliance standards. The second 
               type of qualified defendant would be a person who had new 
               construction or an improvement approved by the local 
               building department on or after January 1, 2008.  Both of 
               these defendants would be liable for minimum statutory 
               damages of $1,000 per offense, instead of $4,000 per 
               offense, when the defendant corrects the alleged 
               construction-related accessibility violation within 60 days 
               of being sued.  

               The third type of qualified defendant under this bill would 
               be a small business defendant, defined as having 25 or 
               fewer employees and no more than $3.5 million in gross 
               receipts. A small business defendant could have its minimum 
               statutory damages liability reduced to $2,000 for each 
               offense, instead of $4,000, in the event that it corrected 
               an alleged physical accessibility violation within 30 days 
               of being served the complaint.  

               This bill would also allow procedural benefits for the 
               above qualified defendants.  Specifically, this bill would 
               grant the option to request an early evaluation conference 
               (EEC) and an immediate and mandatory stay of the 
                                                                      



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               proceedings, similar to the litigation protections now 
               given to a qualified defendant who had hired a CASp to 
               inspect the property and issue a report on its compliance 
               status.  A mandatory stay would freeze the litigation at 
               the point of the court order, which arguably freezes the 
               plaintiff's attorney's fees at that point.  An EEC could be 
               useful to end a case at an early stage, particularly when 
               the defendant had corrected the asserted violation.






































                                                                      



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              b)   Concerns raised by the opposition
                
               A number of disability rights organizations and advocates 
               have written in opposition to this bill.  The majority of 
               the opponents are supportive of many provisions of the 
               bill, but stand strongly opposed to reduced statutory 
               damages, especially for businesses who have seemingly taken 
               no prior steps to be in compliance with existing 
               accessibility laws.  

               Disability Rights California (DRC) writes, "We believe 
               there are many provisions in SB 1186 that advance the good 
               public policy of promoting access to places of public 
               accommodation. ? However, our Board does not support 
               providing damage reductions to businesses that have not 
               made any proactive attempts to make their facilities 
               accessible.  We believe this is poor public policy and 
               gives incentives to businesses to wait until they are sued 
               to make corrections.  California access laws and policies 
               have been in effect for decades and we are troubled that 
               full compliance by businesses still falls significantly 
               short of what is required. Because compliance is so often 
               dependent on individual complaints and lawsuits, provisions 
               that restrict damages for businesses that wait until they 
               are sued to comply does not meaningfully advance our mutual 
               public policy goal of full, free use, and enjoyment of 
               public facilities and accommodations." 

               In response to the concerns that this bill will encourage 
               businesses to wait to be sued the author writes: 

                  ŬIt] is a false assumption that this bill will simply 
                  encourage businesses to wait until they are sued and 
                  then fix.   It is wrong because this remedy only applies 
                  to the fixes that can occur in 30 days. It is foolhardy 
                  for a small business to say, "I will just wait and be 
                  sued," because there is no guarantee that the violation 
                  can be fixed in 30 days, and if not fixed, he is liable 
                  for the full $4,000 in statutory damages plus the 
                  plaintiffs' attorney's fees which can be at least $5,000 
                  per case and can be often much, much more than that.

               Many opponents have also pointed to the distinction between 
               the small business qualified defendants and the other two 
               types.  These opponents note that while there may be some 
               justification for lowering the statutory damages for the so 
                                                                      



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               called "good actors," or businesses who have made prior 
               compliance efforts, that justification does not necessarily 
               extend to all small businesses. The Certified Access 
               Specialist Institute (CASI) argues that "offering reduced 
               statutory damages and litigation protections to small 
               businesses that do not hold a CASp report at the time the 
               suit is filed undermines the Construction Related 
               Accessibility Standards Compliance Act and does not 
               encourage a small business to proactively comply with the 
               ADA. SB 1186 proposes measures to inform a small business 
               owner of the responsibility for a compliant facility 
               (information received upon issuance or renewal of a 
               business license and CASp report disclosure upon rent or 
               lease). Accordingly, if the small business owner chooses 
               not to proactively identify and correct compliance issues 
               after being properly informed, then reduced statutory 
               damages and litigation protections should not be a reward."

               Regarding the distinction between the different types of 
               qualified defendants and the question of why the 
               Legislature should reward small business defendants who 
               have not taken proactive steps like the other qualified 
               defendants, the author writes: 

                  The small business defendant provision is a compromise. 
                  It furthers the purpose of the ADA and good public 
                  policy to extend the reduced damages provisions to a 
                  large number of defendants who would not otherwise be 
                  incentivize to fix the violation.  The bill recognizes 
                  that these defendants are different that the "good guy" 
                  defendant who in good faith relied on a CASp or building 
                  inspection approval, and so SB 1186 would only reduce 
                  the statutory damages to be reduced to $2,000, not 
                  $1,000, and gives them less time to fix. This provision 
                  is truly designed to assist small businesses to comply 
                  when they are sued for minor violations which can be 
                  fixed in 30 days, such as a parking sign without the tow 
                  operator's number.

              c)   Intentional vs. unintentional actions by defendants
                
               This bill would authorize reduced statutory damages for 
               qualified defendants only in the case of unintentional 
               violations of access-related construction accessibility 
               laws. Prior to 2009, there was a split of opinion on the 
               issue of whether Unruh authorized minimum damages of $4,000 
                                                                      



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               per violation even where there was no intentional 
               discrimination.  However, in Harris v. Capital Growth 
               Investors XIV 52 Cal.3d. 1142 (1991), the California 
               Supreme Court interpreted California Civil Code Section 
               52(a) as providing damages only in cases of intentional 
               discrimination.  The next year, the Legislature amended the 
               Unruh Civil Rights Act. The Ninth Circuit found, relying on 
               that amendment, that statutory damages were available 
               regardless of any showing of intentional discrimination. 
               (See Lentini v. California Ctr. For the Arts, 370. F.3d 837 
               (9th Cir. 2004.)  The California Fourth District Court of 
               Appeal declined to follow Lentini in a subsequent ruling, 
               holding that when a violation of Unruh was premised on an 
               ADA violation, statutory damages were only available where 
               intentional discrimination was shown. (See Gunther v. Lin, 
               144 Cal.App.4th 223, 234 (4th Dist. 2006).)

               The split of opinion was settled in the California Supreme 
               Court case of Munson v. Del Taco, Inc., 46 Cal.4th 661, 
               which concluded that recovery of statutory damages for ADA 
               violations under Unruh is permitted even if evidence of 
               intentional discrimination is lacking.  

               Accordingly, because this bill would authorize statutory 
               damages absent a showing of intentional discrimination in 
               construction-related accessibility claims, albeit reduced 
               damages, it is arguably consistent with Munson.  However, 
               opponents of this provision argue that creating a new 
               category of statutory damages for disability access 
               violations singles this type of discrimination out as less 
               egregious than other types of discrimination prohibited 
               under Unruh.  The Disability Rights Education & Defense 
               Fund (DREDF) writes, "by reducing money damages for 
               incidences of disability discrimination by public 
               accommodations that are currently commonly available under 
               the Unruh Act, SB 1186 creates a state-sanctioned policy 
               that diminishes the rights of people with disabilities as 
               compared with the rights of other protected minorities.  
               This policy therefore confers second-class status on people 
               with disabilities and that effect is unacceptable." In 
               response to these concerns, the author writes:

                  It is true that SB 1186 will reduce the statutory 
                  damages for an unintentional violation of the ADA when a 
                  defendant fixes the source of the discrimination (the 
                  access barrier), but as these statutory damages are not 
                                                                      



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                  available to any other class under Unruh, it cannot be 
                  said that SB 1186 treats the disability community 
                  differently than other protected classes under Unruh.
                  In fact, rather than to harmonize the standard for all 
                  classes under Unruh and thus treat everyone alike, this 
                  bill maintains the special right of persons victimized 
                  by a unintentional violation of the ADA to collect 
                  minimum statutory damages - which is not available to 
                  any other person who suffers the other forms of 
                  discrimination under Unruh. The amount, however, is 
                  reduced when the defendant corrects the violation within 
                  a certain amount of time after the complaint is filed. 
                  This is appropriate.
           
          1.Provisions designed to limit risk of protracted litigation and 
            excessively high damages claims

           This bill would allow either party to request a mandatory 
          evaluation conference (MEC) conducted by the court within 120 
          days to 180 days of the request. The MEC would be available to 
          any party, not only the qualified defendants discussed above 
          (see Comment 2).  At the MEC, the status of the case would be 
          evaluated, and the current condition of the property at issue 
          considered.  The evaluator would also consider whether the 
          defendant had made repairs or plans to make repairs, the 
          asserted damages and attorney's fees of the plaintiff, and 
          whether the case may be settled in whole or in part.  The author 
          notes that the mandatory court evaluation conference could 
          assist in resolving the case at an early stage and promote 
          compliance, whether because the defendant has corrected the 
          violation or because the plaintiff is able to obtain injunctive 
          relief.

          This bill would also require the court to consider the 
          reasonableness of a plaintiff's conduct in light of his or her 
          obligation to mitigate damages in any action involving multiple 
          claims for the same construction-related accessibility violation 
          on different occasions.  According to the author, this provision 
          is needed "to address the so-called 'stacking' problem. This 
          occurs when the plaintiff is allegedly deterred by the same 
          construction-related accessibility violation on different 
          occasions and thereby asserts a claim of $4,000 in statutory 
          damages for each of the multiple claims. The most egregious 
          example is the Mundy v. Magic Real Estate case, where the person 
          asserted 30 violations over a short period of time (less than 30 
          days reportedly) and sought $120,000 in statutory damages.  
                                                                      



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          While the obligation to mitigate damages under current law would 
          likely result in a much lower award in a court trial, the mere 
          threat of multiple stacked claims and the purported minimum 
          statutory damages based on multiple claims is intimidating to 
          many property owners who are pressured to quickly settle for 
          lesser damages."  

          Staff notes that the uncodified intent language in the bill 
          would arguably guide the court in addressing damages in cases 
          where multiple claims are asserted for the same conduct on 
          different occasions. Specifically, the uncodified language would 
          state that a plaintiff must have a reasonable explanation for 
          the asserted need for multiple visits to a site where a known 
          barrier violation would deny full and equal access, in light of 
          the obligation to mitigate damages.

           2.Ban on demands for money and guidelines for demand letters

           This bill would prohibit demands for money from or at the 
          direction of an attorney to potential defendants in 
          construction-related accessibility claims.  This bill would also 
          create guidelines for what is appropriate in demand letters, and 
          establish rules by which plaintiffs must indicate in demands and 
          complaints the details, with specificity, surrounding the 
          barriers which they encountered. The author contends that these 
          provisions are needed to respond to evidence showing that a very 
          small number of plaintiff's attorneys have been abusing the 
          right of petition under Section 52 and Section 54.3 of the Civil 
          Code, by issuing a demand letter to a business that the business 
          pay a quick settlement of the attorney's inflated claim of 
          damages or else incur greater liability and legal costs if a 
          lawsuit is filed. 

              a)   Demands for money

               This bill would define "demand for money" as a 
               prelitigation written document or oral statement that is 
               issued to a building owner or tenant where a plaintiff 
               alleges a construction related accessibility violation and 
               makes a demand for money or an offer or agreement to accept 
               money.  This bill would ban these demands for money made by 
               or at the direction of an attorney. 

               In opposition, Californians for Disability Rights, Inc. 
               (CDR) writes that "banning attorneys or others from 
               demanding (or even initiating discussion) regarding 
                                                                      



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               attorney's fees recoverable and/or costs available under 
               the ADA frustrates the ability of lawyers to adequately 
               represent their clients and obtain rapid and cost effective 
               settlement of all rights and remedies available to their 
               clients without resort to litigation."  In response the 
               author writes, "right now, what we are seeing is defendants 
               are choosing to settle rather than fixing.  Faced with an 
               automatic judgment of maybe $9,000 to $14,000, plus his own 
               attorney's fees, many defendants are simply choosing to 
               settle for perhaps $6,000 to $8,000 without fixing the 
               violation.  That is not good policy, and the law should not 
               encourage that."  

               Uncodified legislative intent language would further 
               support the author's contentions and express the 
               Legislature's policy that the abusive use of the right to 
               petition under Section 52 and Section 54.3, does not 
               promote compliance with the accessibility requirements and 
                                                    erodes public support for and confidence in our laws.

              b)   Demand letters and pleading requirements
                
               The bill would also give guidance on what contents are 
               permissible in demand letters issued to potential 
               defendants.  Permissible demand letters alleging a 
               construction-related violation or asserting a claim would 
               be allowed to offer pre-litigation settlement negotiations, 
               but may not include a specific request or demand for money. 
                These letters would also be restricted from containing any 
               specific potential monetary liability for any claim or 
               claims, and may only assert "the property owner or tenant, 
               or both, may be civilly liable for actual and statutory 
               damages for a violation of a construction-related 
               accessibility requirement."  

               Furthermore, this bill would create more stringent pleading 
               standards by requiring any demand letter or complaint 
               asserting a construction-related accessibility claim to 
               state facts sufficient to allow the defendant to identify 
               the basis for the claim, including an explanation of the 
               specific access barrier(s) the claimant encountered, the 
               date(s) of the alleged violations, and the manner in which 
               the barrier was encountered. The author writes that this 
               pleading standard was designed to deter the use of form 
               demand letters and complaints by so-called "mill" attorneys 
               who assert hundreds of the same or nearly identical claims, 
                                                                      



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               often for the same client against different businesses.  
               The requirement is also intended to address the 
               inappropriate "stacking" of multiple claims by requiring a 
               description of each alleged violation instead of the use of 
               a generalized form letter or complaint alleging any number 
               of multiple violations without more specificity. 

               In order to address concerns raised before the Assembly 
               Judiciary Committee that the specific pleading requirement 
               may limit the ability of plaintiffs to draft a sufficient 
               demand letter or claim, the bill was amended to require 
               specificity in plain language only.  Thus, under this bill, 
               plaintiffs would not need to cite the actual code sections 
               which have allegedly been violated in order to draft a 
               legally valid letter or claim.   
               Another provision adds the requirement that any complaint 
               alleging a construction-related accessibility violation 
               must be verified by the plaintiff.  This provision is in 
               response to the practice of at least one attorney asserting 
               and filing claims without the claimant's knowledge or 
               authorization.

           1.Cause for discipline; the State Bar retains prosecutorial 
            discretion

           This bill would, for a three-year period, require a copy of any 
          demand letter sent by or at the direction of an attorney to a 
          potential defendant, alleging a construction-related 
          accessibility violation to be sent to the State Bar and the 
          California Commission on Disability Access (CCDA).  For ease of 
          identification, this bill would require that these letters 
          contain the attorney's name and State Bar license number.  
          Attorneys filing access violation claims would also be required 
          to submit copies of those complaints to the CCDA.  This bill 
          would require the State Bar to review these demand letters, and 
          would provide that a violation of the ban on making a demand for 
          money in a construction-related accessibility claim, or for 
          sending a demand letter which makes a request or demand for 
          money, or an offer to accept money, would be cause for attorney 
          discipline. 

          The author notes that "even though certain acts shall be subject 
          to discipline, the commencement of an actual disciplinary action 
          is at the prosecutorial discretion of the State Bar's Office of 
          Chief Trial Counsel.  Nothing in the bill would require the Bar 
          to bring an action for any offense, and it is certainly possible 
                                                                      



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          that the Bar may just send the lawyer offending the provision an 
          advisory letter for a first violation. The bill further delays 
          operation of the bar discipline provisions to January 1, 2013 to 
          allow lawyers time to learn about and adjust to the new rule."

          Proponents of these provisions argue that this data collection 
          is necessary to identify the unscrupulous attorneys who have 
          been filing abusive construction-related accessibility claims 
          against small businesses.  Opponents argue that these 
          requirements will chill the willingness of attorneys to 
          represent disabled clients in these types of cases. Californians 
          for Disability Rights, Inc. (CDR) writes:

             Bar reporting requirements, unrelated to any allegation of 
             wrongdoing, will unquestionably have a chilling effect on 
             rights of disabled people who act to preserve and advance 
             their civil rights.  The reporting proposals will also 
             undermine the practices of many lawyers who have honorably 
             and competently devoted much of their careers to the 
             representation of people with disabilities.  The chilling 
             impact of unreasonable scrutiny applied to lawyers in the 
             field of disability rights will make it likely that no young 
             lawyer will be eager to be associated with the field of law. 

          The Disability Rights Education and Defense Fund (DREDF) also 
          opposes this provision, and argues that the "requirement that 
          attorneys provide copies of demand letters alleging 
          discrimination caused by violations of construction-related 
          accessibility law by covered entities to the California State 
          Bar for review, in effect segregates people with disabilities 
          and their representatives into a separate and unequal category 
          within the otherwise progressive Unruh Act."  

          A number of amendments were taken in the Assembly Judiciary 
          Committee which sought to address these concerns while 
          maintaining that the State Bar collect information related to 
          demand letters in these cases, in order to better prevent and 
          discipline attorneys engaging in abusive practices.  
          Specifically, those amendments exempted legal services 
          providers, such as Legal Aid and other legal nonprofits, from 
          the requirement of sending demand letters to the State Bar and 
          the CCDA, and clarified the definition of "demand letter."  As a 
          result, only the initial demand letter must be sent to the State 
          Bar, and not all correspondence between the two parties.  
          Further, the author notes that while sending the demand letters 
          would be required, "attorney discipline would not be mandatory, 
                                                                      



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          as the bill cannot interfere with the State Bar's prosecutorial 
          discretion in determining whether or not to file a particular 
          case."  

           2.Education, outreach, and funding
           
          This bill contains a number of provisions to increase compliance 
          with accessibility laws in the state through education, funding, 
          and strengthening of existing programs. 

          Specifically, this bill would make it a priority of the 
          California Commission on Disability Access (CCDA) to develop and 
          disseminate information and educational materials to promote and 
          facilitate disability access compliance.  The bill would require 
          the CCDA to work with other government agencies to gather, 
          develop, and post education materials on its Web site.  In 
          furtherance of this directive, this bill would require the CCDA 
          to tabulate information from the demand letters it receives (see 
          Comment 5)-specifically the types and frequency of violations 
          alleged.  The CCDA would be required to compile a list of the 
          top ten frequently alleged violations and post this information 
          to its Web site.  The CCDA would also be directed to report the 
          compiled data to the Legislature.

          In response to concerns that many businesses who rent their 
          premises do not know the compliance status of their property, 
          this bill would also require the property owner and lessor to 
          notify the tenant in a lease form or rental agreement executed 
          on or after July 1, 2013, whether the property being leased or 
          rented has undergone inspection by a CASp, and if so, whether 
          the property has been or has not been determined to meet all 
          applicable construction-related accessibility standards. The 
          author indicates that the delayed operative date is intended to 
          allow property owners who wish to offer a CASp reviewed property 
          for rental to obtain a CASp inspection if they have not already 
          done so.  The author writes, "with fewer than approximately 230 
          private CASp to serve the State of California, a delayed 
          operative date was deemed appropriate."

          In order to better fund existing programs, this bill would also 
          require cities and counties to collect a $1 fee upon issuance or 
          renewal of a business license or similar instrument to 
          strengthen and fund the CASp program and enable the Division of 
          State Architect (DSA) to develop audit procedures for the  
          program, maintain quality control, develop "best practices" 
          guidelines, and pay for development of more educational and 
                                                                      



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          training resources at state and local level to promote 
          compliance.  Monies collected with be split between local public 
          entities and the DSA. The author argues: 

             getting more public and private CASp is essential to 
             promoting compliance and helping businesses, particularly 
             those in older buildings, comply and avoid lawsuits.  
             Currently, only about 450 CASp, split evenly between private 
             and public employment, serve the needs of all of California.  
             High costs of certification and examination, $1,650 for a 
             three year certificate, has been a significant hurdle. This 
             $1 fee proposal is intended to help fund more public and 
             private CASp and make the program stronger. Some funds will 
             also be spent on state and local educational programs to 
             assist building owners understand and meet their compliance 
             obligations.  

          Finally, this bill would require the State Architect to 
          periodically review its CASp certification and examination fees 
          to ensure they are not excessive, while still covering the cost 
          to administer the program.  Also, this bill would reduce the 
          application fee for a licensed architect, landscape architect, 
          civil engineer, or structural engineer to a maximum of $250.  
            
           Support  :  American Institute of Architects, California Council; 
          Building Owners and Managers Association of California; 
          California Apartment Association; California Building Industry 
          Association; California Building Officials; California Business 
          Properties Association; California Chamber of Commerce; 
          California Citizens Against Law Suit Abuse; California Council 
          of the Blind; California Grocers Association; California 
          Restaurant Association; County Building Officials Association of 
          California; International Council of Shopping Centers; NAIOP of 
          California, the Commercial Real Estate Development Association; 
          Regional Council of Rural Counties; A number of individuals

           Opposition  :  California Foundation for Independent Living 
          Centers; Disability Rights California; California for Disability 
          Rights, Inc.; Disability Rights Education & Defense Fund; 
          Independent Living Center of Southern California; A number of 
          individuals

                                        HISTORY
           
           Source  :  Author

                                                                      



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           Related Pending Legislation  : None Known













































                                                                      



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           Prior Legislation  :

          AB 2282 (Berryhill), which would have authorized an aggrieved 
          person to bring a disability access suit only if: (1) the person 
          has suffered an injury in fact; (2) the injury in fact was 
          caused by the violation; and (3) the violation is redressable, 
          was held under submission in the Senate Appropriations 
          Committee. 

          AB 1878 (Gaines), which is substantially similar to SB 1163 but 
          applies to "microbusinesses," defined by the bill, failed 
          passage in the Assembly Judiciary Committee. 

          SB 1163 (Walters) would have established notice requirements for 
          an aggrieved party to follow before he or she can bring a 
          disability access suit and give the business owner a 120-day 
          time period to remedy the violation.  If the property owner 
          cures the violation, the aggrieved party cannot receive any 
          damages or attorney's fees, except for special damages.  This 
          bill failed passage in this Committee.  
          SB 783 (Dutton, 2011), which was identical to SB 1163, failed 
          passage in this Committee. 

          SB 384 (Evans, Ch. 419, Stats. 2011) clarified that attorneys 
          who file complaints or send demand letters related to disability 
          access violations must provide a written notice of legal rights 
          and obligations whether or not the attorney intends to file an 
          action in state or federal court.  

          SB 209 (Corbett & Harman, Ch. 569, Stats. 2009) required a CASp 
          inspection report, to remain confidential rather than be under 
          seal and subject to protective order.

          SB 1608 (Corbett et al., Ch. 549, Stats. 2008) See Background; 
          Comment 6.

          SB 1766 (McClintock, 2008) See Background.

          AB 2533 (Keene, 2008) See Background.

          SB 855 (Poochigian, 2005) See Background.  

           Prior Vote  :

          Assembly Floor (Ayes 9, Noes 0)
          Assembly Committee on Appropriations (Ayes 17, Noes 0)
                                                                      



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          Assembly Committee on Judiciary (Ayes 10, Noes 0)
          Senate Floor (Ayes 36, Noes 0)
          Senate Committee on Judiciary (Ayes 4, Noes 1)

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