California Legislature—2013–14 Regular Session

Assembly Bill No. 223

Introduced by Assembly Member Olsen

(Coauthors: Assembly Members Achadjian, Bigelow, Harkey, Nestande, and Wagner)

February 4, 2013

An act to amend Section 55.54 of the Civil Code, relating to disability access.

LEGISLATIVE COUNSEL’S DIGEST

AB 223, as introduced, Olsen. Civil actions: disabled access.

Existing law provides, upon being served with a summons and complaint asserting a construction-related accessibility claim, that specified defendants may file a request for a court stay and early evaluation conference in the proceedings, as specified.

This bill would permit a local government, as defined, to file a request for a court stay and early evaluation conference pursuant to this provision.

Vote: 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 55.54 of the Civil Code is amended to
read:

55.54.  

(a) (1) An attorney who causes a summons and
complaint to be served in an action that includes a
construction-related accessibility claim, including, but not limited
to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the
same time, cause to be served a copy of the application form
specified in subdivision (c) and a copy of the following notice,
including, until January 1, 2013, the bracketed text, to the defendant
on separate papers that shall be served with the summons and
complaint:

ADVISORY NOTICE TO DEFENDANT

 
YOU MAY BE ENTITLED TO ASK FOR A COURT
STAY (AN ORDER TEMPORARILY STOPPING ANY
LAWSUIT) AND EARLY EVALUATION CONFERENCE
IN THIS LAWSUIT AND MAY BE ASSESSED REDUCED
STATUTORY DAMAGES IF YOU MEET CERTAIN
CONDITIONS.

 
If the construction-related accessibility claim pertains to a
site that has a Certified Access Specialist (CASp) inspection
report for that site, or to a site where new construction or
improvement was approved after January 1, 2008, by the local
building permit and inspection process, you may make an
immediate request for a court stay and early evaluation
conference in the construction-related accessibility claim by
filing the attached application form with the court. You may
be entitled to the court stay and early evaluation conference
regarding the accessibility claim only if ALL of the statements
in the application form applicable to you are true.

 
FURTHER, if you are a defendant described above (with a
CASp inspection report or with new construction after January
1, 2008), and, to the best of your knowledge, there have been
no modifications or alterations completed or commenced since
the CASp report or building department approval of the new
construction or improvement that impacted compliance with
construction-related accessibility standards with respect to the
plaintiff’s claim, your liability for minimum statutory damages
may be reduced to $1,000 for each offense, unless the violation
was intentional, and if all construction-related accessibility
violations giving rise to the claim are corrected within 60 days
of being served with this complaint.

 
IN ADDITION, if your business is a small business that,
over the previous three years, or the existence of the business
if less than three years, employs 25 or fewer employees on
average over that time period and meets specified gross
receipts criteria, you may also be entitled to the court stay and
early evaluation conference and your minimum statutory
damages for each claim may be reduced to $2,000 for each
offense, unless the violation was intentional, and if all the
alleged construction-related accessibility violations are
corrected within 30 days of being served with the complaint.

 
If you plan to correct the violations giving rise to the claim,
you should take pictures and measurements or similar action
to document the condition of the physical barrier asserted to
be the basis for a violation before undertaking any corrective
action in case a court needs to see the condition of a barrier
before it was corrected.

 
The court will schedule the conference to be held within 70
days after you file the attached application form.

[If you are not a defendant with a CASp inspection report,
until a form is adopted by the Judicial Council, you may use
the attached form if you modify the form and supplement it
with your declaration stating any one of the following:

 
(1) Until January 1, 2018, that the site’s new construction
or improvement on or after January 1, 2008, and before January
1, 2016, was approved pursuant to the local building permit
and inspection process; that, to the best of your knowledge,
there have been no modifications or alterations completed or
commenced since the building department approval that
impacted compliance with construction-related accessibility
standards with respect to the plaintiff’s claim; and that all
violations giving rise to the claim have been corrected, or will
be corrected within 60 days of the complaint being served.

 
(2) That the site’s new construction or improvement passed
inspection by a local building department inspector who is a
certified access specialist; that, to the best of your knowledge,
there have been no modifications or alterations completed or
commenced since that inspection approval that impacted
compliance with construction-related accessibility standards
with respect to the plaintiff’s claim; and that all violations
giving rise to the claim have been corrected, or will be
corrected within 60 days of the complaint being served.

 
(3) That your business is a small business with 25 or fewer
employees and meets the gross receipts criteria set out in
Section 55.56 of the Civil Code, and that all violations giving
rise to the claim have been corrected, or will be corrected
within 30 days of being served with the complaint.]

 
The court will also issue an immediate stay of the
proceedings unless the plaintiff has obtained a temporary
restraining order in the construction-related accessibility claim.
You may obtain a copy of the application form, filing
instructions, and additional information about the stay and
early evaluation conference through the Judicial Council
Internet Web site at www.courts.ca.gov/selfhelp-start.htm.

 
You may file the application after you are served with a
summons and complaint, but no later than your first court
pleading or appearance in this case, which is due within 30
days after you receive the summons and complaint. If you do
not file the application, you will still need to file your reply
to the lawsuit within 30 days after you receive the summons
and complaint to contest it. You may obtain more information
about how to represent yourself and how to file a reply without
hiring an attorney at www.courts.ca.gov/selfhelp-start.htm.

 
You may file the application without the assistance of an
attorney, but it may be in your best interest to immediately
seek the assistance of an attorney experienced in disability
access laws when you receive a summons and complaint. You
may make an offer to settle the case, and it may be in your
interest to put that offer in writing so that it may be considered
under Section 55.55 of the Civil Code.

(2) An attorney who files a Notice of Substitution of Counsel
to appear as counsel for a plaintiff who, acting in propria persona,
had previously filed a complaint in an action that includes a
construction-related accessibility claim, including, but not limited
to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the
same time, cause to be served a copy of the application form
specified in subdivision (c) and a copy of the notice specified in
paragraph (1) upon the defendant on separate pages that shall be
attached to the Notice of Substitution of Counsel.

(b) (1) Notwithstanding any other law, upon being served with
a summons and complaint asserting a construction-related
accessibility claim, including, but not limited to, a claim brought
under Section 51, 54, 54.1, or 55, a qualified defendant, or other
defendant as defined in paragraph (2), may file a request for a court
stay and early evaluation conference in the proceedings of that
claim prior to or simultaneous with that defendant’s responsive
pleading or other initial appearance in the action that includes the
claim. If that defendant filed a timely request for stay and early
evaluation conference before a responsive pleading was due, the
period for filing a responsive pleading shall be tolled until the stay
is lifted. Any responsive pleading filed simultaneously with a
request for stay and early evaluation conference may be amended
without prejudice, and the period for filing that amendment shall
be tolled until the stay is lifted.

(2) This subdivision shall also apply to a defendant if any of
the following apply:

(A) Until January 1, 2018, the site’s new construction or
improvement on or after January 1, 2008, and before January 1,
2016, was approved pursuant to the local building permit and
inspection process, and the defendant declares with the application
that, to the best of the defendant’s knowledge, there have been no
modifications or alterations completed or commenced since that
approval that impacted compliance with construction-related
accessibility standards with respect to the plaintiff’s claim, and
that all violations have been corrected, or will be corrected within
60 days of being served with the complaint.

(B) The site’s new construction or improvement was approved
by a local public building department inspector who is a certified
access specialist, and the defendant declares with the application
that, to the best of the defendant’s knowledge, there have been no
modifications or alterations completed or commenced since that
approval that impacted compliance with construction-related
accessibility standards with respect to the plaintiff’s claim, and
that all violations have been corrected, or will be corrected within
60 days of being served with the complaint.

(C) The defendant is a small business described in subdivision
(f) of Section 55.56, and the defendant declares with the application
that all violations have been corrected, or will be corrected within
30 days of being served with the complaint.

begin insert

(D) The defendant is a local government. For purposes of this
subparagraph, a “local government” means a county, city, city
and county, including a chartered city or county, or a public or
municipal corporation.

end insert

(3) Notwithstanding any other law, if the plaintiff had acted in
propria persona in filing a complaint that includes a
construction-related accessibility claim, including, but not limited
to, a claim brought under Section 51, 54, 54.1, or 55, a qualified
defendant, or a defendant described by paragraph (2), who is served
with a Notice of Substitution of Counsel shall have 30 days to file
an application for a stay and an early evaluation conference. The
application may be filed prior to or after the defendant’s filing of
a responsive pleading or other initial appearance in the action that
includes the claim, except that an application may not be filed in
a claim in which an early evaluation conference or settlement
conference has already been held on the claim.

(c) (1) An application for an early evaluation conference and
stay by a qualified defendant shall include a signed declaration
that states both of the following:

(A) The site identified in the complaint has been
CASp-inspected or meets applicable standards, or is CASp
determination pending or has been inspected by a CASp, and if
the site is CASp-inspected or meets applicable standards, there
have been no modifications completed or commenced since the
date of inspection that may impact compliance with
construction-related accessibility standards to the best of the
defendant’s knowledge.

(B) An inspection report pertaining to the site has been issued
by a CASp. The inspection report shall be provided to the court
and the plaintiff at least 15 days prior to the court date set for the
early evaluation conference.

(2) An application for an early evaluation conference and stay
by a defendant described by subparagraph (A) of paragraph (2) of
subdivision (b), which may be filed until January 1, 2018, shall
include a signed declaration that states all of the following:

(A) The site’s new construction or improvement was approved
pursuant to the local building permit and inspection process on or
after January 1, 2008, and before January 1, 2016.

(B) To the best of the defendant’s knowledge there have been
no modifications or alterations completed or commenced since
that approval that impacted compliance with construction-related
accessibility standards with respect to the plaintiff’s claim.

(C) All construction-related violations giving rise to the claim
have been corrected, or will be corrected within 60 days of the
complaint being served upon the defendant.

(3) An application for an early evaluation conference and stay
by a defendant described in subparagraph (B) of paragraph (2) of
subdivision (b) shall include a signed declaration that states all of
the following:

(A) The site’s new construction or improvement was approved
by a local building department inspector who is a certified access
specialist.

(B) To the best of the defendant’s knowledge there have been
no modifications or alterations completed or commenced since
that approval that impacted compliance with construction-related
accessibility standards with respect to the plaintiff’s claim.

(C) All construction related violations giving rise to the claim
have been corrected, or will be corrected within 60 days of the
complaint being served upon the defendant.

(4) An application for an early evaluation conference and stay
by a defendant described by subparagraph (C) of paragraph (2) of
subdivision (b) shall include the materials listed in paragraphs (5)
and (6) of this subdivision, and shall include a signed declaration
that states both of the following:

(A) The defendant is a small business that employs 25 or fewer
employees and meets the gross receipts eligibility criteria provided
in paragraph (2) of subdivision (f) of Section 55.56.

(B) All construction-related violations giving rise to the claim
have been corrected, or will be corrected within 30 days of the
complaint being served upon the defendant.

(5) An application for an early evaluation conference and stay
by a small business defendant under paragraph (4) shall include
evidence showing correction of all violations within 30 days of
the service of the complaint and served upon the plaintiff with the
reply unless the application is filed prior to completion of the
corrections. In that event, the evidence shall be provided to the
court and served upon the plaintiff within 10 days of the court
order as provided in paragraph (4) of subdivision (d). This
paragraph shall not be construed to extend the permissible time
under subdivision (f) of Section 55.56 to make the corrections.

(6) An application for an early evaluation conference and stay
by a small business defendant under paragraph (4) shall also
include both of the following, which shall be confidential
documents filed only with the court and not served upon or
available to the plaintiff:

(A) Proof of the defendant’s number of employees, as shown
by wage report forms filed with the Employment Development
Department.

(B) Proof of the defendant’s average gross receipts for the
previous three years, or for the existence of the business if less
than three years, as shown by a federal or state tax document.

(7) The following provisional request and notice forms may be
used and filed by a qualified defendant until forms are adopted by
the Judicial Council for those purposes pursuant to subdivision
(l):

PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE
INSERTED

[3 pages]

(8) The provisional forms and any replacement Judicial Council
forms shall include the defendant’s declaration of proof of service
of the application, the notice of the court’s order, and the court’s
order pursuant to subdivision (d).

(d) Upon the filing of an application for stay and early evaluation
conference by a qualified defendant, or a defendant described by
paragraph (2) of subdivision (b), the court shall immediately issue
an order that does all of the following:

(1) Grants a 90-day stay of the proceedings with respect to the
construction-related accessibility claim, unless the plaintiff has
obtained temporary injunctive relief that is still in place for the
construction-related accessibility claim.

(2) Schedules a mandatory early evaluation conference for a
date as soon as possible from the date of the order, but in no event
later than 70 days after issuance of the order, and in no event earlier
than 50 days after the filing of the request.

(3) Directs the parties, and any other person whose authority is
required to negotiate and enter into settlement, to appear in person
at the time set for the conference. Appearance by counsel shall not
satisfy the requirement that the parties or those with negotiation
and settlement authority personally appear, provided, however,
that the court may allow a party who is unable to attend in person
due to his or her disability to participate in the hearing by telephone
or other alternative means or through a representative authorized
to settle the case.

(4) (A) Directs the qualified 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 and in paragraph (4) of
subdivision (e).

(B) Directs a defendant described by subparagraph (A) or (B)
of paragraph (2) of subdivision (b) who has filed a declaration
stating that the violation or violations have been corrected, or will
be corrected within 60 days of service of the complaint to file with
the court and serve on the plaintiff evidence showing correction
of the violation or violations within 10 calendar days after the
completion of the corrections.

(C) Directs a defendant described by subparagraph (C) of
paragraph (2) of subdivision (b) who has filed a declaration stating
that the violation or violations have been corrected, or will be
corrected within 30 days of service of the complaint to file with
the court and serve on the plaintiff within 10 days after issuance
of the court order evidence of correction of the violation or
violations, if that evidence showing correction was not filed
previously with the application and served on the plaintiff.

(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
involved in the evaluation and settlement of the case.

(6) Directs the plaintiff to file with the court and serve on the
defendant at least 15 days before the date of the conference a
statement that includes, to the extent reasonably known, for use
solely for the purpose of the early evaluation conference, all of the
following:

(A) An itemized list of specific conditions on the subject
premises that are the basis of the claimed violations of
construction-related accessibility standards in the plaintiff’s
complaint.

(B) The amount of damages claimed.

(C) The amount of attorney’s fees and costs incurred to date, if
any, that are being claimed.

(D) Any demand for settlement of the case in its entirety.

(e) (1) A party failing to comply with any court order may be
subject to court sanction at the court’s discretion.

(2) (A) The court shall lift the stay when the defendant has
failed to file and serve the CASp inspection report prior to the
early evaluation conference and has failed also to produce the
report at the time of the early evaluation conference, unless the
defendant shows good cause for that failure.

(B) The court shall lift the stay when a defendant described by
paragraph (2) of subdivision (b) has failed to file and serve the
evidence showing correction of the violation or violations as
required by law.

(3) The court may lift the stay at the conclusion of the early
evaluation conference upon a showing of good cause by the
plaintiff. Good cause may include the defendant’s failure to make
reasonably timely progress toward completion of corrections noted
by a CASp.

(4) The CASp inspection report filed and served pursuant to
subdivision (d) shall remain confidential throughout the stay and
shall continue to be confidential until the conclusion of the claim,
whether by dismissal, settlement, or final judgment, unless there
is a 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.

(f) All discussions at the early evaluation conference shall be
subject to Section 1152 of the Evidence Code. It is the intent of
the Legislature that the purpose of the evaluation conference shall
include, but not be limited to, evaluation of all of the following,
as applicable:

(1) Whether the defendant is entitled to the 90-day stay for some
or all of the identified issues in the case, as a qualified defendant.

(2) The current condition of the site and the status of any plan
of corrections, including whether the qualified defendant has
corrected or is willing to correct the alleged violations, and the
timeline for doing so.

(3) Whether subdivision (f) of Section 55.56 may be applicable
to the case, and whether all violations giving rise to the claim have
been corrected within the specified time periods.

(4) Whether the case, including any claim for damages or
injunctive relief, can be settled in whole or in part.

(5) Whether the parties should share other information that may
facilitate early evaluation and resolution of the dispute.

(g) Nothing in this section precludes any party from making an
offer to compromise pursuant to Section 998 of the Code of Civil
Procedure.

(h) For a claim involving a qualified defendant, as provided in
paragraph (1) of subdivision (b), the court may schedule additional
conferences and may extend the 90-day stay for good cause shown,
but not to exceed one additional 90-day extension.

(i) Early evaluation conferences shall be conducted by a superior
court judge or commissioner, or a court early evaluation conference
officer. A commissioner shall not be qualified to conduct early
evaluation conferences pursuant to this subdivision unless he or
she has received training regarding disability access requirements
imposed by the federal Americans with Disabilities Act of 1990
(Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), state laws
that govern access to public facilities, and federal and state
regulations adopted pursuant to those laws. For purposes of this
subdivision, a “court early evaluation conference officer” means
an attorney employed by the court who has received training
regarding disability access requirements imposed by the federal
Americans with Disabilities Act of 1990, state laws that govern
access to public facilities, and federal and state regulations adopted
pursuant to those laws. Attorneys serving in this capacity may also
be utilized by the court for other purposes not related to these
proceedings.

(j) Nothing in this part shall be deemed to make any inspection
report, opinion, statement, or other finding or conclusion of a CASp
binding on the court, or to abrogate in any manner the ultimate
authority of the court to make all appropriate findings of fact and
law. The CASp inspection report and any opinion, statement,
finding, or conclusion therein shall be given the weight the trier
of fact finds that it deserves.

(k) Nothing in this part shall be construed to invalidate or limit
any California construction-related accessibility standard that
provides greater or equal protection for the rights of individuals
with disabilities than is afforded by the federal Americans with
Disabilities Act (Public Law 101-336; 42 U.S.C. Sec. 12101 et
seq.) and the federal regulations adopted pursuant to that act.

(l) (1) The Judicial Council shall, by January 1, 2013, prepare
and post on its Internet Web site instructions and a form for use
by a qualified defendant, or other defendant described by paragraph
(2) of subdivision (b), to file an application for stay and early
evaluation conference as provided in subdivisions (b) and (c), a
form for the court’s notice of stay and early evaluation conference,
and any other forms appropriate to implement the provisions
relating to early evaluation conferences. Until those forms are
adopted, the Judicial Council shall post on its Internet Web site
the provisional forms set forth in subdivision (c).

(2) Until the adoption of the forms as provided in paragraph
(1), the provisional application form may be used by a defendant
described by paragraph (2) of subdivision (b).

(3) In lieu of the provisions specified in number 3 of page 1 of
the application form set forth in paragraph (7) of subdivision (c),
the application shall include one of the following declarations of
the defendant as to the basis for the application, as follows:

(A) That all of the following apply to a defendant described by
subparagraph (A) of paragraph (2) of subdivision (b):

(i) The site’s new construction or improvement was approved
pursuant to the local building permit and inspection process on or
after January 1, 2008, and before January 1, 2016.

(ii) To the best of the defendant’s knowledge there have been
no modifications or alterations completed or commenced since
that approval that impacted compliance with construction-related
accessibility standards with respect to the plaintiff’s claim.

(iii) All the violations giving rise to the claim have been
corrected, or will be corrected within 60 days of the complaint
being served.

(B) That all of the following apply to a defendant described by
subparagraph (B) of paragraph (2) of subdivision (b):

(i) The site’s new construction or improvement was approved
by a local public building department inspector who is a certified
access specialist.

(ii) To the best of the defendant’s knowledge there have been
no modifications or alterations completed or commenced since
that approval that impacted compliance with construction-related
accessibility standards with respect to the plaintiff’s claim.

(iii) All the violations giving rise to the claim have been
corrected, or will be corrected within 60 days of the complaint
being served.

(C) That both of the following apply to a defendant described
by subparagraph (C) of paragraph (2) of subdivision (b):

(i) The defendant is a small business described in paragraph (2)
of subdivision (f) of Section 55.56.

(ii) The violation or violations giving rise to the claim have been
corrected, or will be corrected within 30 days of the complaint
being served.

(4) In lieu of the provision specified in number 4(c) of page 1
of the application form set forth in paragraph (7) of subdivision
(c), the application shall include a request that the court order the
defendant to do either of the following:

(A) For a defendant who has filed a declaration stating that all
violations have been corrected, or will be corrected within 60 days
of service of the complaint, file with the court and serve on the
plaintiff evidence showing correction of the violation or violations
within 10 calendar days of the completion of the corrections.

(B) For a defendant who is a small business that has filed a
declaration stating that all the violations have been corrected, or
will be corrected within 30 days of the service of the complaint,
file with the court and serve on the plaintiff evidence showing
correction of the violation or violations within 10 calendar days
after issuance of the court order, if that evidence showing correction
was not filed previously with the application and served on the
plaintiff.

(5) The Judicial Council shall also prepare and post on its
Internet Web site instructions and cover pages to assist plaintiffs
and defendants, respectively, to comply with their filing
responsibilities under subdivision (d). The cover pages shall also
provide for the party’s declaration of proof of service of the
pertinent document served under the court order.

(m) The stay provisions shall not apply to any
construction-related accessibility claim in which the plaintiff has
been granted temporary injunctive relief that remains in place.

(n) This section shall not apply to any action brought by the
Attorney General, or by any district attorney, city attorney, or
county counsel.

(o) The amendments to this section made by Senate Bill 1186
of the 2011-12 Regular Session of the Legislature shall apply only
to claims filed on or after the operative date of that act. Nothing
in this part is intended to affect any complaint filed before that
date.

(p) Nothing in this part is intended to affect existing law
regarding class action requirements.