BILL ANALYSIS                                                                                                                                                                                                    



                                                                      AB 52


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          Date of Hearing:  April 21, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB  
                              52 (Gray) - As Introduced  


          SUBJECT:  PUBLIC ACCOMMODATIONS: CONSTRUCTION-RELATED  
          ACCESSIBILITY CLAIMS


          KEY ISSUES: 


          1)SHOULD A PLAINTIFF WHO IS DENIED FULL AND EQUAL ACCESS TO A  
            PLACE OF PUBLIC ACCOMMODATION BASED UPON HIS OR HER PHYSICAL  
            DISABLITY BECAUSE OF THE DEFENDANT'S VIOLATION OF A  
            CONSTRUCTION-RELATED ACCESSIBILITY STANDARD BE ENTITLED TO A  
            MAXIMUM OF ONE QUARTER OF THE DAMAGES RECOVERABLE BY A PERSON  
            WHO IS DENIED ACCESS TO A PUBLIC FACILITY BECAUSE OF ANOTHER  
            PROTECTED STATUS, WHEN THE DEFENDANT IS A BUSINESS THAT MAKES  
            UP TO TEN MILLION DOLLARS PER YEAR AND THE BUSINESS CORRECTS  
            THE VIOLATION UP TO SIX MONTHS AFTER DENYING ACCESS TO THE  
            PLAINTIFF?
          2)WOULD REDUCTION OF THE MAXIMUM LIABILITY FOR A VIOLATION OF A  
            CONSTRUCTION-RELATED ACCESSIBILITY STANDARD DETER AN  
            UNSCRUPULOUS ATTORNEY FROM FILING A LAWSUIT AGAINST A SMALL  
            BUSINESS OWNER, CONSIDERING THAT AN EXISTING PROVISION OF THE  
            LAW REDUCED THE MAXIMUM LIABILITY FOR SUCH A VIOLATION AND THE  
            AUTHOR ASSERTS THAT IT HAS NOT BEEN EFFECTIVE IN CURTAILING  
            THE PROBLEM? 


          3)ARE THERE OTHER APPROACHES TO DECREASE PREDATORY LAWSUITS AND  
            SETTLEMENTS BY SMALL BUSINESSES (WHICH FUEL SUCH LAWSUITS)  
            SUCH AS GIVING DEFENDANT BUSINESSES MORE INFORMATION ABOUT THE  








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            LIMITS OF THEIR LIABILITY, AND AN EASIER WAY TO RESPOND TO  
            COMPLAINTS THAT ALLEGE CONSTRUCTION RELATED ACCESSIBILITY  
            CLAIMS? 


                                      SYNOPSIS


          Like other civil rights statutes that prohibit discrimination in  
          businesses open to the public, the statutory scheme for  
          enforcement of disability access laws rests on voluntary  
          compliance and individual legal actions.  There is no  
          governmental entity charged with administrative or judicial  
          enforcement of these obligations.  This bill reiterates a  
          controversial question that the Legislature has frequently heard  
          and consistently rejected: should people with disabilities be  
          required to comply with special procedural barriers not facing  
          others who endure discrimination before they can assert legal  
          claims against businesses that violate their right of access to  
          public accommodations, and should they also be entitled to a  
          small percentage of the damages recoverable to persons who are  
          denied access to public accommodations because of another  
          protected status, and be prevented from recovering for their  
          injuries at all when the business corrects the violation at some  
          point up to six months in the future? 


          According to the author, the bill is necessary because many  
          small businesses are out of compliance with longstanding state  
          and federal disability access laws, leaving them vulnerable to  
          lawsuits. Some of these suits, the author and supporters allege,  
          are brought by plaintiffs for personal financial benefit, not  
          out of an altruistic desire to improve disability access for  
          disabled consumers, and some of these suits are brought against  
          businesses that are willing to comply but are hampered by the  
          complexity of the law.  Disability rights advocates oppose the  
          bill, but they agree with the supporters on a number of points,  
          including that many businesses are not in compliance with access  
          laws despite their long duration and that many lawsuits are  
          filed, some by plaintiffs seeking monetary recovery.  Opponents  
          argue that they have supported prior legislation to increase  
          business awareness of access obligations, improve voluntary  








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          compliance, and reward responsible behavior and those reforms  
          should be furthered, not circumvented.  Opponents argue that  
          this bill singles out people with disabilities for unprecedented  
          obstacles to the enforcement of civil rights, deprives them of a  
          remedy for actual violations, and will deter, not encourage,  
          compliance with disability discrimination law.  Moreover,  
          opponents state that the promise of the bill may be misleadingly  
          unattainable because the requirements it would impose are  
          inconsistent with federal disability discrimination law and  
          therefore would not preclude the law suits from which businesses  
          seek protection.


          Unlike two prior measures, SB 1608 (Corbett and Harman) of 2008  
          and SB 1186 (Steinberg and Dutton), historic bipartisan measures  
          to reduce disability access violations and unnecessary lawsuits,  
          this bill does not seek to encourage compliance with disability  
          access laws and is not the result of open stakeholder meetings  
          and mutual compromise.  Rather, it reflects no input from  
          disabled advocates or amendments as a result of its harsh impact  
          on disabled citizens and their rights.  This bill is supported  
          by business groups, including the California Chamber of Commerce  
          and the Civil Justice Association of California, and opposed by  
          disability rights advocates, including Disability Rights  
          California and the American Civil Liberties Union of California.


          SUMMARY:  Provides that statutory damages recovered in a  
          construction-related accessibility claim against a place of  
          public accommodation resulting in a denial of full and equal  
          access to the place of public accommodation that is based upon a  
          violation of a construction-related accessibility standard are a  
          maximum of one-quarter of the minimum damages that are  
          recoverable for other violations of the Unruh Civil Rights Act  
          and are not recoverable at all under certain conditions.   
          Specifically, this bill:  
          1)Amends the provisions for notice, right to cure, and reduced  
            statutory damages that are available under current law to some  
            defendants---specifically those who correct all of the  
            violations alleged in the complaint and had either sought an  
            inspection by a Certified Access Specialist (CASp) prior to  
            the date on which the plaintiff was allegedly denied full and  








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            equal access, or passed inspection by the local building  
            department permit and inspection process as new construction  
            and not made further changes to the premises-as follows:
             a)   Statutory damages are further reduced to a maximum of  
               one thousand dollars ($1,000) for each offense (rather than  
               a minimum of one thousand dollars, as provided in existing  
               law (and a minimum of $4,000 for all other violations of  
               the Unruh Act).
             b)   A defendant who is eligible for the reduced damages  
               described above has an additional 120 days to correct all  
               of the construction-related violations that are the basis  
               of a complaint alleging a construction-related  
               accessibility claim, allowing those violations to remain  
               uncorrected for 180 days after the complaint is served,  
               rather than the 60 days provided under current law.


             c)   Removes the January 1, 2016 sunset on one method for  
               qualifying for reduced damages in a construction-related  
               access lawsuit: when the basis of an alleged violation is  
               new construction or an improvement that was approved by,  
               and passed inspection by, the local building department to  
               allow all new construction projects approved by, and passed  
               inspection by, the local building department permit process  
               within five years prior to the date the claim being served  
               on the defendant to qualify for reduced damages.


          1)Amends the provisions for notice, right to cure, and reduced  
            statutory damages that are available under current law to some  
            defendants---specifically a defendant who corrects all of the  
            violations alleged in the complaint and qualifies as a "small  
            business"-as follows:
             a)   Further reduces statutory damages to a maximum of one  
               thousand dollars ($1,000) for each offense (rather than a  
               minimum of two thousand dollars, as provided in existing  
               law (and a minimum of $4,000 for all other violations of  
               the Unruh Act).
             b)   Gives a defendant who is eligible for the reduced  
               damages described above an additional 150 days to correct  
               all of the construction-related violations that are the  
               basis of a complaint alleging a construction-related  








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               accessibility claim, allowing those violations to remain  
               uncorrected for 180 days after a complaint is served,  
               rather than just 30 days, as provided under current law.


             c)   Greatly expands the definition of "small business" from  
               a business that makes $3.5 million per year to any business  
               with 100 or fewer employees and average annual gross  
               receipts of ten million dollars ($10,000,000), or any  
               California manufacturer with 100 or fewer employees,  
               regardless of annual income.  


          1)Prohibits all damages in a construction-related accessibility  
            lawsuit against a "small business" as defined above, unless  
            the defendant seeks and is "granted a 180-day stay of court  
            proceedings from the day the claim is filed during which time  
            the place of public accommodation may meet the requirements of  
            a qualified defendant as defined by paragraph (8) of  
            subdivision (a) of Section 55.52."
          EXISTING LAW:   


           1)Pursuant to federal law, under 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. 12182.)
          2)Pursuant to the state Unruh Civil Rights Act (Unruh), provides  
            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.  (Civil Code  
            Section 51.  All further statutory references are to the  
            California Civil Code, unless otherwise indicated.)  
          3)Provides that a violation of Unruh 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  








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            may determine to be proper.  (Section 51 et seq.) 


          4)Provides that a violation of Unruh subjects a person to  
            injunctive and actual damages - plus treble actual damages but  
            not less than $1,000, and attorney's fees as the court deems  
            proper.  (Section 54.3.)


          5)Provides for a California Commission on Disability Access (the  
            Commission), an independent state agency composed of 19  
            members, with responsibility for monitoring disability access  
            compliance in California and authority to recommend necessary  
            changes in to the Legislature in order to facilitate  
            implementation of state and federal laws on disability access.  
             (Government Code Section 8299 et seq.)


          6)Requires an attorney, when serving a demand letter or a  
            complaint on a defendant alleging a construction-related  
            accessibility claim or noncompliance, to provide a written  
            advisory with each demand letter or complaint, as defined. The  
            written advisory shall include information about 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.  The  
            written advisory is only required from any attorney, and not  
            from a pro per plaintiff.  (Section 55.3.)


          7)Requires an attorney alleging the construction-related  
            accessibility claim or noncompliance to state facts sufficient  
            to allow the defendant to identify the basis for the claim.   
            (Section 55.31.)


          8)Provides that upon being served with a complaint asserting a  
            construction-related accessibility claim, a defendant may move  
            for a court stay and early evaluation conference if the  
            defendant is any of the following: (A)  Until January 1, 2018,  
            a defendant whose site had new construction or improvement  
            between January 1, 2008, and January 1, 2016 and was approved  








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            pursuant to the local building permit and inspection process;  
            (B) a defendant whose site had new construction or improvement  
            that was approved by a local public building department  
            inspector who is a certified access specialist (CASp); or (C)  
            a defendant who is a small business.  The stay to the  
            construction-related accessibility claim, as provided, may be  
            provided for 90-days unless the plaintiff has obtained  
            temporary injunctive relief.  (Section 55.54.)  


          9)Authorizes a defendant who does not qualify for an early  
            evaluation conference (EEC) pursuant to these provisions, or  
            who forgoes those provisions, to request a mandatory  
            evaluation conference, as specified, and authorizes a  
            plaintiff to make that request if the defendant does not make  
            that request.  (Section 55.54.)


          10)Specifies that a court shall lift the stay when the 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.  (Section 55.54.)


          11)Specifies that a court may lift the stay at the conclusion of  
            the EEC upon a showing of good cause by the plaintiff.   
            (Section 55.54.)


          12)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.  (Section  
            55.54.)


          13)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.  (Section  
            55.54.)










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          14)Provides that the stay and early evaluation conference shall  
            not be construed to invalidate or limit any 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.  (Section 55.54.)


          15)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.  (Section 55.55.)


          16)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.   
            (Section 55.56.)


          17)Requires 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.  (Section 55.56.)


          18)Reduces a defendant's minimum liability for statutory damages  
            in a construction-related accessibility claim against a place  
            of public accommodation in the following circumstances: 










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             a)   To a minimum of $1,000 for each unintentional offense if  
               (i) 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 (ii) the structure  
               was either CASp -inspected, or was new construction  
               approved in the building and permitting process, prior to  
               the complaint being filed.
             b)   To a minimum of $2,000 for each unintentional offense if  
               (i) 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 (ii) the defendant  
               is a small business that has 25 or fewer employees and  
               annual gross receipts of less than three million five  
               hundred thousand dollars ($3,500,000) averaged over the  
               past three years.  (Section 55.56.)


          1)Separately defines "small business" for purposes of state  
            contracting as an independently owned and operated business  
            that is not dominant in its field of operation, the principal  
            office of which is located in California, the officers of  
            which are domiciled in California, and which, together with  
            affiliates, has 100 or fewer employees, and average annual  
            gross receipts of ten million dollars ($10,000,000) or less  
            over the previous three years, or is a manufacturer, as  
            defined in subdivision (c), with 100 or fewer employees (and  
            regardless of income).  (Government Code Section 14837(d)(1).)
          2)Defines "qualified defendant" as "a defendant in an action  
            that includes a construction-related accessibility claim that  
            is asserted against a place of public accommodation that met  
            the requirements of "meets applicable standards" or "inspected  
            by a CASp" prior to the date the defendant was served with the  
            summons and complaint in that action."  (Section 55.52(a)(8).)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  Under the federal Americans with Disabilities Act  
          (ADA), a business that constitutes a place of public  
          accommodation (e.g., many places of lodging, entertainment,  








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          recreation, restaurants, bars, theaters, stores, health clubs,  
          etc.) is prohibited from discriminating on the basis of  
          disability if its operations affect interstate commerce.   
          Prohibited discrimination can take a number of forms - e.g.,  
          denial of participation in the facility, or a service, benefit,  
          or good of the business; denial of equal participation in a  
          good, service, or facility; or provision of a different or  
          separate facility, service or good (unless necessary to provide  
          services and the like that are as effective as that provided to  
          others).  Government facilities are also covered by the access  
          obligations of the ADA.


          Public accommodations in California are required to comply with  
          not only the ADA, but also with the state's Unruh Act, which  
          incorporates the ADA into its provisions and makes a violation  
          of the ADA punishable as a violation of Unruh.  (Section 51.)   
          All violations of Unruh are subject to statutory damages of at  
          least four thousand dollars per violation, except some cases  
          where the violation is based on a construction-related  
          accessibility claim, in which case lower damages (a minimum of  
          one thousand or two thousand dollars, depending on the  
          circumstances of the case) apply.  


          Should state law single out one minority group for special  
          barriers to enforcement of civil rights protections?  Persons  
          with disabilities are just one of the many groups protected from  
          discrimination in the use and enjoyment of public facilities and  
          accommodations.  Under the state's Unruh Civil Rights Act, other  
          protected characteristics include race, national origin, sex and  
          sexual orientation.  This bill would greatly expand the right to  
          cure and reduced damages provisions in existing law so they  
          apply to far more businesses. 


          This bill would make the following additional changes to state  
          law: (1) reduce statutory damages to, at most, 25 percent of the  
          amount that is payable to all other persons who are victims of  
          discrimination under the Unruh Act; (2) appear to effectively  
          eliminate all damages payable to disabled plaintiffs who are  
          denied access to public accommodations; (3) grant certain  








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          procedural benefits to large businesses and manufacturers; and  
          (4) allow violations to be uncorrected for up to six months with  
          no additional penalty.  


          These proposals significantly alter the Unruh Act, which is  
          designed to ensure access to public accommodations for all  
          persons in the state and make special protections and remedies  
          available to those who are members of groups whom the  
          Legislature has deemed to be particularly vulnerable to  
          discrimination because of their "sex, race, color, religion,  
          ancestry, national origin, disability, medical condition,  
          marital status, or sexual orientation" (Section 51 (b)) from  
          further discrimination.  This bill alters the Unruh act in a way  
          that hurts only one protected class of vulnerable persons: the  
          disabled.  The Committee should be wary of any proposed law that  
          limits access to the courts.  "Because the right to access the  
          courts implicates due process and First Amendment rights, courts  
          have been exceedingly reluctant to restrict such access" (Moy v.  
                                              United States (9th Cir. 1990) 906 F.2d 467, 470.), especially  
          one which appears on its face to discriminate against a class of  
          citizens who are entitled by state and federal law to special  
          protections.  


          Section Two of this bill appears to effectively eliminate ALL  
          statutory damages for violations of the Unruh Act AND the  
          Disabled Persons Act by conditioning the award of damages upon  
          action by the defendant business that is against its financial  
          interest.  Section Two of the bill adds Section 55.565 to the  
          Civil Code, providing that: 


               When a plaintiff brings a construction-related  
               accessibility claim alleging a violation of a  
               construction-related accessibility standard by a place of  
               public accommodation that is a small business as defined in  
               Section 14837 of the Government Code, statutory damages  
               under subdivision (a) of Section 52 or subdivision (a) of  
               Section 54.3 may be recovered against a place of public  
               accommodation only if the place of public accommodation  
               where the alleged violation occurred is granted a 180-day  








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               stay of court proceedings from the day the claim is filed  
               during which time the place of public accommodation may  
               meet the requirements of a qualified defendant [who obtains  
               a CASp inspection and thereby qualifies for an early  
               evaluation conference].


          Subdivision (a) of Section 52 sets forth the standard damages  
          that may be awarded for a violation of the Unruh Civil Rights  
          Act, providing that a defendant is "liable for each and every  
          offense for the actual damages, and any amount that may be  
          determined by a jury, or a court sitting without a jury, up to a  
          maximum of three times the amount of actual damage but in no  
          case less than four thousand dollars ($4,000), and any  
          attorney's fees that may be determined by the court in addition  
          thereto."  Meanwhile, the other statute referenced in Section  
          Two--subdivision (a) of Section 54.3--describes the standard  
          damages to be awarded for a violation of the Disabled Persons  
          Act (which prohibits all acts of intentional and unintentional  
          discrimination against the disabled having access to public  
          accommodations): "up to a maximum of three times the amount of  
          actual damages but in no case less than one thousand dollars  
          ($1,000), and attorney's fees as may be determined by the court  
          in addition thereto."


          By its own terms, Section Two of the bill prohibits a disabled  
          plaintiff who has been denied access to a public accommodation  
          because of a violation of a construction-related accessibility  
          standard from collecting any damages unless the defendant - the  
          person who violated the disabled plaintiff's civil rights-seeks  
          and obtains a 180-day stay from a court, during which the  
          defendant is allowed to correct the violations.  It is unclear  
          whether this 180-day stay is concurrent with, or in addition to,  
          the 180-days that the bill provides in Section One as the  
          standard period for a "small business" to correct violations.   
          But aside from the merits of giving a defendant six months (or  
          perhaps even a year, if the stay were in addition to the  
          standard six-month period) to comply with a decades-old law, why  
          would a defendant ever seek a court stay, knowing that by not  
          doing so, he or she would eliminate all potential liability for  
          statutory damages?  This provision effectively forecloses the  








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          ability of a disabled plaintiff to collect any damages for a  
          violation of the Unruh Act or the Disabled Persons Act.  Could  
          this possibly be the author's intent?  Apparently so, according  
          to the author, who (without suggesting any intent to amend or  
          remove Section Two from the bill) explains his reasoning as  
          follows:


               The bill also recognizes that many small business owners  
               cannot afford an attorney to guide them through the legal  
               system. Small business protections that are put in place  
               are often underutilized because the businesses owner fails  
               to evoke them. AB 52 puts the onus on the attorney who has  
               filed the suit to understand the defendants [sic.] rights.  
               If they do not seek the 180 day fix-it period for small  
               businesses, no statutory damages may be awarded.


          The general principle of our civil (and criminal) laws is that  
          everyone is held accountable for the wrongs they have committed,  
          even if they are not warned in advance and even if they comply  
          with the law in the future.  The Committee is unaware of any  
          provision in civil rights law that is as extreme (and  
          discriminatory) as the one in Section Two of this bill.


          This bill undermines recent bipartisan negotiated collaboration  
          and compromise on disability access reform, pre-litigation  
          relief to small businesses, and the important role and work of  
          the Disability Access Commission.  In response to complaints  
          that small businesses were the victims of predatory lawsuits  
          alleging ADA violations, a bipartisan and bicameral effort with  
          disability rights organizations and business advocates over a  
          period of years ultimately lead to the adoption of SB 1608  
          (Corbett and Harman) in 2008.  It was the product of extended  
          and careful consideration by thoughtful legislators and input  
          and support from members of the disability and business  
          communities including Disability Rights California, the  
          California Chamber of Commerce, the California Foundation for  
          Independent Living Centers, California Restaurant Association,  
          Business Properties Association, California Hotel Association,  
          and several others.  








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          SB 1608 enacted several reforms to increase voluntary compliance  
          with state and federal laws requiring access to the disabled in  
          any place of public accommodation.  It established incentives  
          for compliance and protection from litigation by responsible  
          businesses, including a process by which businesses, if sued for  
          violation of accessibility standards, could obtain a temporary  
          stay of any litigation along with an in-person early evaluation  
          conference with the court, attended by persons with authority to  
          resolve the dispute between the parties, for the purpose of  
          deterring frivolous cases and evaluating prospects for early  
          settlement.  Moreover, it clarified the standards for awarding  
          damages and attorney's fees with respect to a claim alleging a  
          violation of construction-related accessibility standards.  It  
          also required an attorney, when serving a written demand for  
          money or a complaint on a defendant, to include a written  
          advisory to the defendant of the defendant's rights and  
          obligations.  In addition, the bill required architects to  
          complete coursework regarding disability access requirements and  
          imposed continuing education requirements on local building  
          officials relating to disability access requirements.


          Importantly, SB 1608 also established the California Commission  
          on Disability Access (Commission) "to develop[] recommendations  
          that will enable persons with disabilities to exercise their  
          right to full and equal access to public facilities, and that  
          will facilitate business compliance with the laws and  
          regulations to avoid unnecessary litigation." (Government Code  
          section 8299.)  Among other things, the Commission was required  
          to conduct studies and make reports to the Legislature.  The  
          Commission is responsible for monitoring compliance, reporting  
          and making recommendations to the Legislature.  Despite initial  
          funding difficulties and delays, the Commission now has staff,  
          has been meeting regularly, and is carrying out its  
          responsibilities.   


          Four years after SB 1608 was signed into law, Senate Bill 1186  
          enacted a number of additional reforms to the laws governing  
          construction-related accessibility claims.  According to the  








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          Senate Judiciary Committee's analysis of SB 1186, Senator and  
          President Pro Tempore Darrell Steinberg, who was the joint  
          author of the bill, described it as follows [emphasis added]:


               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, the Senate Minority Leader and joint author of  
          SB 1186, described the bill as: 


               . . . the culmination of months of hard work with staff and  
               all the various stakeholders in the community.  [The 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 vital civil rights law. 


          The policy goal of SB 1186, according to the authors, was "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." 









                                                                      AB 52


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          Finally, SB 1186 gave defendants the option to request an early  
          evaluation conference (EEC) and an immediate and mandatory stay  
          of the proceedings, similar to the litigation protections now  
          given to a qualified defendant who 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 has corrected the  
          asserted violation.


          Unlike both SB 1608 and SB 1186, this bill is not the product of  
          compromise or negotiation.  It has never been amended in  
          response to or consideration of concerns raised by the persons  
          who are directly impacted by the widespread lack of compliance  
          with construction-related access standards: the disabled  
          community.  There is no indication that anyone who is affected  
          by construction-related disability access standards and  
          litigation, other than business groups, has been consulted in  
          the development of the bill's provisions.  As the ACLU observes  
          in its letter of opposition to the bill:


               The bill radically rewrites carefully crafted rules that  
               were jointly authored and approved with bipartisan support  
               not long ago after consultation with many experts and  
               stakeholders.  It turns the concept of minimum statutory  
               penalties on its head by recasting it as a maximum.  Under  
               the bill, a person denied access to a place of public  
               accommodation on the basis of race or gender would be  
               presumed to have suffered at least $4000 in damages, while  
               a person who is discriminated against on the basis of  
               disability by the same business would be thought to have  
               suffered at most   $1000. The premise of the bill appears to  
               be that disability discrimination is inherently less  
               harmful than other forms of unlawful discrimination - a  
               notion that is both offensive and unjustified.  Moreover,  
               the bill subverts the existing incentives for businesses to  
               come into compliance by obtaining a CASp inspection, and  
               for local building departments to employ CASps. Why would  








                                                                      AB 52


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               any business obtain a CASp inspection if it could achieve  
               the same benefits by simply receiving review by a local  
               building official. Similarly, why would local building  
               departments bother to comply with their obligation to  
               employ CASps if non-CASp review has the same legal  
               significance? In addition, the bill extends the limitation  
               on statutory penalties to far more serious violations by  
               dramatically increasing the "fix-it" window for small  
               violations that can be corrected in 30 days to much more  
               substantial violations that require 180 days to fix.

          It is also noteworthy that many of the business groups that now  
          support this bill supported SB 1186 when it was before the  
          Legislature and claimed that it would greatly improve existing  
          law by deterring frivolous lawsuits and serial litigants from  
          filing Unruh Act-ADA lawsuits.  

          There is a lack of evidence showing that the bipartisan reforms  
          in 2008 (SB 1608) and 2012 (SB 1186) have been ineffective,  
          litigation has increased in the past 18 months, or the problems  
          identified by the author are widespread throughout the state.   
          The latest reforms to state law governing construction-related  
          accessibility claims, enacted by SB 1186, took effect on January  
          1, 2014, less than a year and a half ago.    

          Nevertheless, the author contends that there is a crisis in  
          California that merits the severe impact on the civil rights of  
          disabled Californians that are proposed in this bill.  According  
          to the author:

               The federal Americans with Disabilities Act (ADA) provides  
               that no individual shall be discriminated against on the  
               basis of a disability. California's Unruh Civil Rights Act  
               declares that a violation of the ADA subjects the violator  
               to actual damages, treble actual damages, attorney's fees,  
               and not less than $4,000 in statutory damages per  
               violation.

               Among the five states with the highest disabled  
               populations, more lawsuits have been filed in California  
               than Florida, Pennsylvania, Texas and New York combined.   
               It is estimated that more than 42% of all ADA lawsuits in  








                                                                      AB 52


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               the United States are filed in California.

               California's inflated statutory damages have made the state  
               a hotspot for frivolous lawsuits, particularly against  
               small businesses that lack the means to defend themselves  
               in court. An estimated 20,000 ADA lawsuits have been filed  
               in California since the ADA was enacted in 1992, typically  
               resulting in a payout of $4,000-$6000. Small businesses,  
               that made no conscious decision to violate the law, face a  
               harsh financial decision sometimes resulting in the closure  
               of the businesses and often costing the local community  
               jobs and economic productivity.


          It is noteworthy that the author does not provide historical  
          context for these figures.  When were the figures  
          compiled--prior to the date when SB 1186 was enacted, or after?   
          Has the number of complaints fallen since January of 2012?  The  
          author cites an April 2014 CBS News report that indicates the  
          investigative team had reviewed 10,000 lawsuits filed in federal  
          courts around the country since 2005.  But only a tiny  
          percentage of any of those lawsuits, if any, could have been  
          filed after January 1, 2014, when SB 1186 when into effect.  The  
          author also cites an article in California Lawyer published on  
          April 30, 2012, almost two years before SB 1186 took effect.   
          The author also cites an August 2014 article in the Merced  
          Sun-Star with the headline, Atwater woman sues 21 businesses in  
          Merced and Stanislaus counties, but the lawsuits discussed in  
          the article were filed in 2013.  Finally, the author cites a  
          2008 article in TIME Magazine, which was written before SB 1608,  
          the 2008 ADA reform legislation, went into effect.


          Recent and objective evidence is available to provide  
          perspective about the magnitude of this problem. California has  
          approximately 3.3 million small businesses.  According to data  
          compiled by the Commission, from January 2014 until January  
          2015, 3,468 demand letters and complaints were filed in the  
          state.  This means that less than one percent of small  
          businesses (and a far smaller percentage of all businesses) were  
          sued in 2014 for violations of construction-related  
          accessibility standards.  








                                                                      AB 52


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          Nevertheless, some of the information reported to the Commission  
          is alarming in terms of the number and frequency of  
          construction-related accessibility lawsuits being filed by a  
          small number of law firms in California.  According to the  
          Commission, between September 2012 and October 2014, 5,392  
          complaints (including demand letters) were filed (in both state  
          and federal courts).  More than half (54%) of the complaints  
          were filed by just two law firms.  Forty-six percent of all  
          complaints were filed by just 14 parties.


          However, data from the Commission shows that more attorneys are  
          choosing to file lawsuits in federal court, perhaps to avoid  
          complying with California-specific requirements, such as sending  
          demand letters to the Commission and the State Bar.  
          Interestingly, the Commission reports that the state's total  
          share of complaints and demand letters has gone down.  Between  
          September 2012 and December 2013, state complaints/demand  
          letters represented 68% of all the complaints/demand letters  
          that the Commission received.  However, between January 2014 and  
          October 2014, state complaints/demand letters represented only  
          46% of all complaints/demand letters that the Commission  
          received.  In other words, more complaints are now being filed  
          in federal court than in state court, which undermines the  
          author's argument that plaintiffs are solely choosing to file  
          lawsuits in state court in order to obtain damages.


          What can be done or should be done about (the small number of)  
          attorneys who file large numbers of Unruh Act-ADA lawsuits?  The  
          Ninth Circuit Court of Appeals addressed this issue in Molski v.  
          Evergreen Dynasty Corp. (9th Cir. 2008) 521 F.3d 1215.  Molski  
          was paralyzed from the chest down, needed a wheelchair to get  
          around, and filed about 400 lawsuits in the federal courts  
          within the districts in California.  (Id. at p. 1051.)  Upon  
          motion of the defendant businesses (including the named  
          defendant, a restaurant) the district court declared Molski a  
          vexatious litigant and granted the defendants' request for a  
          pre-filing order (requiring court approval before Molski could  
          file additional lawsuits).  (Ibid.)  The Ninth Circuit  
          acknowledged that "pre-filing orders are an extreme remedy that  








                                                                      AB 52


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          should rarely be used" and that courts "should not enter  
          pre-filing orders with undue haste because such sanctions can  
          tread on a litigant's due process right of access to the  
          courts."  (Id. at p. 1057.)  Nevertheless, the Ninth Circuit  
          upheld the order, finding that it was within the district  
          court's power, "In light of the district court's finding that  
          Molski did not suffer the injuries he claimed . . . to conclude  
          that the large number of complaints filed by Molski containing  
          false or exaggerated allegations of injury were vexatious" and  
          the pre-filing requirement could be issued.  (Id. at p. 1059.)


          Also, there is no evidence that these lawsuits are "frivolous."   
          The Merriam-Webster Dictionary defines "frivolous" as "of little  
          weight or importance," or "having no sound basis (as in fact or  
          law) ."  In other words, a lawsuit alleging  
          a violation of the Unruh Act because of a denial of access would  
          only be "frivolous" if it had no basis in the law (i.e. it did  
          not state an actual violation).  In fact, there is no evidence  
          that the complaints which are filed are without merit.   
          According to data collected by the California Commission on  
          Disability Access, most complaints identify multiple access  
          violations.  For example, of the cases filed in July 2014, most  
          complaints identified multiple or significant single violations,  
          such as missing grab bars.  Only two out of 201 complaints  
          identified a single issue, such as a soap or seat cover  
          dispenser being too high.  


          Taken together, the information about the high number of  
          complaints being filed by a very small number of plaintiffs AND  
          the fact that courts now have the power and authority to limit  
          the ability of vexatious litigants to file serial Unruh-ADA  
          complaints, it seems clear that the rights of the vulnerable  
          should not be sacrificed because of the despicable conduct of a  
          few bad actors.  Also, courts clearly have tools to limit  
          vexatious litigation, but they will never be able to use those  
          tools as long as businesses settle, rather than litigate,  
          complaints.  


          This bill would greatly expand the number and types of  








                                                                      AB 52


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          businesses that would qualify for the reduced statutory damages  
          which are now available only to small businesses.  Current law  
          provides reduced damages (a minimum of $2,000 for each  
          unintentional 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 that has 25 or fewer employees and  
                                                                                 annual gross receipts of less than three million five hundred  
          thousand dollars ($3,500,000) averaged over the past three  
          years.  (Section 55.56.)

          This bill would greatly expand the number and type of businesses  
          that would be entitled to reduced damages by incorporating by  
          reference a definition of "small business" from another code  
          section, Government Code Section 14837(d)(1), into the Unruh  
          Act.  That Government Code definition, identifying those  
          businesses which are entitled to a bidding preference in state  
          contracting, defines "small business" as a California-based  
          business "which, together with affiliates, has 100 or fewer  
          employees, and average annual gross receipts of ten million  
          dollars ($10,000,000) or less over the previous three years, or  
          is a manufacturer . . with 100 or fewer employees [regardless of  
          its annual gross receipts]."  Obviously, the type of business  
          that would fit in this category (but not within Section 55.56's  
          definition) could never be considered the type of "mom and pop"  
          business which deserves special protection from liability  
          because it could be put out of business by one lawsuit alleging  
          a construction-related accessibility violation, or as the author  
          puts it in his statement explaining the need for the bill, the  
          type of business that would "face a harsh financial decision  
          sometimes resulting in the closure of the businesses and often  
          costing the local community jobs and economic productivity."  In  
          fact, a manufacturer with 100 employees and receipts of $100  
          million or more per year would qualify as a "small business"  
          under the bill. 

          The changes to the law would be unlikely to further reduce the  
          frequency of lawsuits being filed against small businesses and  
          could even increase the number of lawsuits which are filed.  One  
          of the most significant and controversial aspects of SB 1186 in  
          2012 was the manner in which it reduced statutory damages for  
          violations of accessibility standards by certain businesses  








                                                                      AB 52


                                                                    Page  22


          because of their size, recently permitted and approved status,  
          or proactive efforts to comply with construction-related  
          accessibility laws (by hiring a CASp).  The rationale for those  
          reductions was that very small businesses didn't have the  
          resources to fight lawsuits, and that all business owners should  
          be able to rely upon building inspectors to ensure that  
          permitted and approved recent construction projects complied  
          with Unruh and ADA accessibility requirements.  But the  
          mechanism envisioned for imposing reduced damages was a court  
          determination of the defendant's eligibility for the reduction.


          This bill likewise assumes that a court would determine whether  
          a defendant would be eligible for reduced damages. In addition,  
          it adds new determinations that would need to be made by courts.  
           Courts would not only need to determine whether the defendant  
          qualified as a "small business" under the bill's new definition,  
          but also whether a stay of the proceedings should be granted and  
          whether the corrections cited by the plaintiff in the original  
          complaint were corrected within 180 days.  


          All stakeholders agree that the vast majority of these cases  
          never get to the point where a court makes any determination of  
          damages.  In fact, one of the few things about which all sides  
          agree is that the vast majority of these cases settle out of  
          court, and never even reach the stage of a settlement  
          conference.  AB 52 won't change that.  Unsophisticated business  
          owners will still settle, rather than litigate, as long as the  
          complaints against their businesses allege actual violations of  
          accessibility standards (which, as pointed out above, they do  
          according to the complaints filed with the Commission) and  
          businesses are uninformed about their legal rights and  
          responsibilities.  The few unscrupulous attorneys in the state  
          who make a living off filing and settling serial complaints will  
          continue to do so.  They may even be motivated to file more  
          complaints if each complaint were worth less money.  Therefore,  
          the solution is not further reduction of statutory damages in  
          these cases.  The only possible solution is to find ways to  
          increase compliance with accessibility standards, educate  
          business owners about their rights and responsibilities, and  
          give small businesses and pro per defendants additional legal  








                                                                      AB 52


                                                                    Page  23


          tools to protect themselves.
          There are many ways, other than the approach taken in this bill,  
          to promote access to public accommodations, increase compliance  
          with construction-related accessibility standards, and educate  
          business owners that do not devalue the rights of disabled  
          Californians.  Over the past few months, the Chair and staff of  
          this Committee have met with representatives of all of the major  
          stakeholders on this issue: CJAC, the California Chamber of  
          Commerce, Consumer Attorneys of California, the California  
          Restaurant Association, Business Property Owners Association,  
          California Lodging Industry Association, American Institute of  
          Architects, disability advocates and their attorneys, the  
          Commission (CCDA), the State Architect, CA Building Officials  
          Association, and the ACLU.  The Committee collected information  
          and suggestions from those stakeholders about how existing law  
          could be changed and improved, including many suggestions that  
          would be supported by the disabled community and business  
          interests.  


          Based upon those extensive stakeholder meetings and discussions,  
          the Committee urged the author to pursue a different, more  
          productive, and more collaborative path.  The Committee compiled  
          its suggestions into three separate legislation proposals that  
          were each at least one page in length: 


          (1) A pilot program in Stanislaus and Merced Counties that would  
          require new businesses to obtain CASp inspections prior to  
          obtaining a business license; increase the number of CASp  
          inspectors available in the county; provide CASp inspections  
          free of charge to small businesses; require landlords to ensure  
          that parking lots and common areas are in compliance with the  
          ADA prior to leasing commercial property; and implement a meet  
          and confer requirement for ADA litigants. 


          (2) Landlord-tenant proposals to ensure that landlords meet  
          their responsibilities to commercial tenants. 


          (3) CASp-related proposals to increase the supply of CASp's in  








                                                                      AB 52


                                                                    Page  24


          the state and encourage business owners to obtain CASp  
          inspections.  


          The Committee offered to draft the language for the author and  
          work with the author and stakeholders on refining the language.   
          The author's office has indicated that the author is not  
          interested in any of these three alternatives because they  
          either do not solve the problem in his district, or in the case  
          of the district proposal, do not have statewide impact.


          Recommended Committee amendments.  It is clear that the problem  
          which the author wishes to address with this bill involves a  
          very small number of law firms filing a very large and  
          disproportionate share of Unruh-ADA lawsuits in California.  At  
          the same time, courts have tools to discourage vexatious  
          litigation and recent reforms have not been given adequate time  
          to be tested.  The Legislature should not further sacrifice the  
          rights of the disabled to deal with this problem, the best  
          course of action would appear to be public policy proposals that  
          do more of the following: (1) increase compliance by public  
          accommodations with construction-related accessibility  
          standards; and (2) increase information about rights and  
          responsibilities that businesses have under Unruh; (3)  
          discourage settlements by businesses of cases that either do not  
          have merit or involve vexatious litigants; and (4) encourage  
          defendants to seek court orders against vexatious litigants like  
          the one issued against Molski. 


          In light of the availability of alternative approaches and the  
          need to educate business owners and provide them with additional  
          legal tools to exercise their rights and responsibilities, the  
          Committee proposes the following amendments to this bill.  


             1.   On Page 2 starting at line 1, through Page 6 at line 2:  
               strike out all text (the current text of the bill).











                                                                      AB 52


                                                                    Page  25


             2.   Insert an amended version of Civil Code Section 55.53:

            Civil Code 55.3.  

            (a) For purposes of this section, the following shall apply:

            (1) "Complaint" means a civil complaint that is filed or is to  
            be filed with a court and is sent to or served upon a  
            defendant on the basis of one or more construction-related  
            accessibility claims, as defined in this section.

            (2) "Construction-related accessibility claim" means any claim  
            of a violation of any construction-related accessibility  
            standard, as defined by paragraph (6) of subdivision (a) of  
            Section 55.52, with respect to a place of public  
            accommodation. "Construction-related accessibility claim" does  
            not include a claim of interference with housing within the  
            meaning of paragraph (2) of subdivision (b) of Section 54.1,  
            or any claim of interference caused by something other than  
            the construction-related accessibility condition of the  
            property, including, but not limited to, the conduct of any  
            person.

            (3) "Demand for money" means a prelitigation written document  
            or oral statement that is provided or issued to a building  
            owner or tenant, or the owner's or tenant's agent or employee,  
            that does all of the following:

            (A) Alleges that the site is in violation of one or more  
            construction-related accessibility standards, as defined in  
            paragraph (6) of subdivision (a) of Section 55.52, or alleges  
            one or more construction-related accessibility claims, as  
            defined in paragraph (2).

            (B) Contains or makes a request or demand for money or an  
            offer or agreement to accept money.

            (C) Is provided or issued whether or not the attorney intends  
            to file a complaint, or eventually files a complaint, in state  
            or federal court.

            (4) "Demand letter" means a prelitigation written document  








                                                                      AB 52


                                                                    Page  26


            that is provided to a building owner or tenant, or the owner's  
            or tenant's agent or employee, that alleges the site is in  
            violation of one or more construction-related accessibility  
            standards, as defined in paragraph (6) of subdivision (a) of  
            Section 55.52, or alleges one or more construction-related  
            accessibility claims, as defined in paragraph (2), and is  
            provided whether or not the attorney intends to file a  
            complaint, or eventually files a complaint, in state or  
            federal court.

            (b) An attorney shall provide the following items to a  
            defendant, contemporaneous to serving the defendant with a  
            demand letter or complaint alleging a construction-related  
            accessibility claim: 

            (1) a written advisory on the form described in subdivision  
            (c), or, until that form is available, on a separate page or  
            pages that are clearly distinguishable from the demand letter  
            or complaint, with each demand letter or complaint sent to or  
            served upon a defendant or potential defendant. The advisory  
            shall not be required in subsequent communications following  
            the initial demand letter or initial complaint unless a new  
            construction-related accessibility claim is asserted in the  
            subsequent demand letter or amended complaint. The advisory  
            shall state as follows: 


                STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY  
                      INFORMATION FOR BUILDING OWNERS AND TENANTS

            This information is available in English, Spanish, Chinese,  
            Vietnamese, and Korean through the Judicial Council of  
            California. Persons with visual impairments can get assistance  
            in viewing this form through the Judicial Council Internet Web  
            site at www.courts.ca.gov.

            California law requires that you receive this information  
            because the demand letter or court complaint you received with  
            this document claims that your building or property does not  
            comply with one or more existing construction-related  
            accessibility laws or regulations protecting the civil rights  
            of persons with disabilities to access public places.








                                                                      AB 52


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            YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with  
            disability access laws is a serious and significant  
            responsibility that applies to all California building owners  
            and tenants with buildings open for business to the public.  
            You may obtain information about your legal obligations and  
            how to comply with disability access laws through the Division  
            of the State Architect at www.dgs.ca.gov. Information is also  
            available from the California Commission on Disability Access  
            at www.ccda.ca.gov/guide.htm.

            YOU HAVE IMPORTANT LEGAL RIGHTS. The allegations made in the  
            accompanying demand letter or court complaint do not mean that  
            you are required to pay any money unless and until a court  
            finds you liable. Moreover, RECEIPT OF A DEMAND LETTER OR  
            COURT COMPLAINT AND THIS ADVISORY DOES NOT NECESSARILY MEAN  
            YOU WILL BE FOUND LIABLE FOR ANYTHING. You will have the right  
            if you are later sued to fully present your explanation why  
            you believe you have not in fact violated disability access  
            laws or have corrected the violation or violations giving rise  
            to the claim.

            You have the right to seek assistance or advice about this  
            demand letter or court complaint from any person of your  
            choice. If you have insurance, you may also wish to contact  
            your insurance provider. Your best interest may be served by  
            seeking legal advice or representation from an attorney, but  
            you may also represent yourself and file the necessary court  
            papers to protect your interests if you are served with a  
            court complaint. If you have hired an attorney to represent  
            you, you should immediately notify your attorney.

            If a court complaint has been served on you, you will get a  
            separate advisory notice with the complaint advising you of  
            special options and procedures available to you under certain  
            conditions.

            ADDITIONAL THINGS YOU SHOULD KNOW: 

            ATTORNEY MISCONDUCT.  Except for limited circumstances, State  
            law generally requires that a pre-litigation demand letter  
            from an attorney MAY NOT REQUEST MONEY OR MAKE A DEMAND FOR  








                                                                      AB 52


                                                                    Page  28


            MONEY OR AN OFFER OR AGREEMENT TO ACCEPT MONEY. Moreover, a  
            demand letter from an attorney MUST INCLUDE THE ATTORNEY'S  
            STATE BAR LICENSE NUMBER.

            If you believe the attorney who provided you with this notice  
            and a pre-litigation demand letter is not complying with State  
            law, you may send a copy of the demand letter you received  
            from the attorney to the State Bar by facsimile transmission  
            to 1-415-538-2171, or by mail to the State Bar of California,  
            180 Howard Street, San Francisco, CA, 94105, Attention:  
            Professional Competence.

            REDUCING YOUR DAMAGES.  Even if you are found to be liable by  
            a court, you may be able to reduce the amount of money the  
            court orders you to pay in damages.  If you are a small  
            business owner and correct all of the construction-related  
            violations that are the basis of the complaint against you  
            within 30 days of being served with the complaint, you may  
            qualify for reduced damages. If you believe you qualify for  
            reduced damages, you may wish to consult an attorney to obtain  
            legal advice, or contact the California Commission on  
            Disability Access (CCDA) for additional information about the  
            rights and obligations of business owners.

            COMMERCIAL TENANT.  If you are a commercial tenant, you may  
            not be responsible for ensuring that some or all portions of  
            the premises you lease for your business (including common  
            areas, such as parking lots), are accessible to the public  
            because those areas may be the responsibility of your  
            landlord.  You may want to refer to your lease agreement, or  
            consult with your landlord or an attorney, to determine if  
            your landlord is responsible under the terms of your lease for  
            maintaining and improving some or all of the areas you lease  
            to operate your business.  

            (2) A form, developed by the Judicial Council, allowing the  
            defendant to respond to the demand letter or complaint.  
            (A) The form shall be written in plain language and allow the  
            defendant to indicate any relevant information affecting the  
            defendant's liability or damages, including but not limited to  
            the following:
            (i) A general denial, as well as specific denials of the  








                                                                      AB 52


                                                                    Page  29


            allegations in the complaint, including the failure of the  
            plaintiff to meet the standing requirements in Section 55.56.
            (ii) Any information that the defendant qualifies for reduced  
            damages pursuant to paragraphs (1) or (2) of subdivision (f)  
            of Section 55.56.
            (iii) Any information that the defendant has made a written  
            settlement offer that has been rejected by the plaintiff, or  
            met with the plaintiff in a good faith effort to negotiate a  
            settlement of the complaint, both of which may be relevant to  
            the court's determination of an award of reasonable attorney's  
            fees and recoverable costs pursuant to Section 55.55.
            (iv) Any information about the defendant's landlord if the  
            defendant believes the landlord  is responsible for ensuring  
            that some or all of the property leased by the defendant,  
            including but not limited to common areas, such as parking  
            lots, are accessible to the public,  including the landlord's  
            name and contact information.
            (B) The form shall give the defendant the option of using the  
            form as either a formal Answer to the plaintiff's complaint,  
            or as an informal response to the plaintiff in for use in a  
            negotiated settlement.  The form shall also provide general  
            instructions to the defendant about how to file the form as a  
            formal Answer to the complaint.

            (c) On or before July 1,  2013  2016, the Judicial Council shall  
            update the form that may be used by attorneys to comply with  
            the requirements of paragraph (1) of subdivision (b). The form  
            shall be in substantially the same format and include all of  
            the text set forth in paragraph (1) of subdivision (b). The  
            form shall be available in English, Spanish, Chinese,  
            Vietnamese, and Korean, and shall include a statement that the  
            form is available in additional languages, and the Judicial  
            Council Internet Web site address where the different versions  
            of the form may be located. The form shall include Internet  
            Web site information for the Division of the State Architect  
            and the California Commission on Disability Access.

            (d)  Subdivision  Paragraph (1) of subdivision (b) shall apply  
            only to a demand letter or complaint made by an attorney.  
            Nothing in this section is intended to affect the right to  
            file a civil complaint under any other law or regulation  
            protecting the physical access rights of persons with  








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            disabilities. Additionally, nothing in this section requires a  
            party to provide or send a demand letter to another party  
            before proceeding against that party with a civil complaint.

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


          These amendments will update the notice which is now required to  
          be served on defendant businesses by plaintiffs pursuant to  
          Section 55.53.  The amendments will also require the plaintiff  
          to provide, contemporaneously with the notice, the defendant  
          with a new response and information form that is to be drafted  
          by the Judicial Council.  The new form will give the defendant  
          business not only a way to respond to the complaint (and engage  
          in effective negotiations with the plaintiff), but will also  
          information about how to limit his or her liability.  This new  
          form will be especially helpful to small businesses with limited  
          financial resources that may not be able to hire an attorney,  
          the very businesses which the author says he hoped to help by  
          introducing this bill.  


          Similar pending legislation.  AB 54 (Olsen) - requires a  
          plaintiff who has been denied access to a public accommodation  
          because of a construction-related accessibility  violation of a  
          standard which has changed in the past three years to give  
          notice to the defendant 60 days before filing a complaint and an  
          opportunity to cure the violation, with no statutory damages  
          payable to the plaintiff; and provides a tax credit under the  
          Personal Income Tax Law and the Corporation Tax Law to any  
          taxpayer who obtains a certified access specialist inspection.   
          This bill is currently in this Committee.

          AB 1230 (Gomez) - establishes, among other things, the  
          California Americans with Disabilities Act Small Business  
          Compliance Finance Act, which would provide loans, funded in  
          part by bond issuances, to assist small businesses finance the  
          costs of projects that alter or retrofit existing small business  
          facilities to comply with the federal American with Disabilities  
          Act.  This bill is currently in Assembly Banking and Finance.








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          AB 1342 (Steinorth) - provides, among other things, additional  
          revenue to the California Commission on Disability Access.  This  
          bill is currently in this Committee.


          AB 1468 (Baker) -provides, among other things, that a public  
                                                   entity's possession of a close out letter from the State  
          Architect certifying that the buildings, facilities, and other  
          places meet the applicable construction-related accessibility  
          standards of the federal Americans with Disabilities Act, serves  
          as presumptive evidence of compliance with the federal Americans  
          with Disabilities Act.  This bill is currently in this  
          Committee.


          SB 67 (Galgiani) - among other things, exempts a small business  
          from statutory damage liability in connection with a  
          construction-related accessibility claim and extends the period  
          for correcting construction-related violations that are the  
          basis of a claim from 60 days to 120 days of being served with  
          the complaint, for purposes of reducing a defendant's minimum  
          statutory damage liability to $1,000.  This bill is currently in  
          Senate Judiciary.


          SB 251 (Roth) - relating to civil rights and disability access,  
          is currently in Senate Rules.


          REGISTERED SUPPORT / OPPOSITION:


          Support


          Apartment Association, California Southern Cities
          Apartment Association of Orange County
          Building Owners and Managers Association California
          California Association of Realtors
          California Building Industry Association








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          California Business Properties Association
          Camarillo Chamber of Commerce
          California Citizens Against Lawsuit Abuse
          California Chamber of Commerce
          California Restaurant Association
          Civil Justice Association of California
          County of San Diego
          East Bay Rental Housing Association
          Fairfield-Suisun City Chamber of Commerce
          Fullerton Chamber of Commerce
          Goleta Valley Chamber of Commerce
          Greater Fresno Area Chamber of Commerce
          International Council of Shopping Centers
          La Raza Roundtable
          Lake Tahoe South Shore Chamber of Commerce
          Lodi Chamber of Commerce
          NAIOP - Commercial Real Estate Development Association
          Nor Cal Rental Property Association
          North Valley Property Owners Association
          North Lake Tahoe Chamber of Commerce
          Oxnard Chamber of Commerce
          Palm Desert Area Chamber of Commerce
          Rancho Cordova Chamber of Commerce
          Redondo Beach Chamber of Commerce and Visitors Bureau
          San Diego County Apartment Association 
          San Diego Regional Chamber of Commerce
          Simi Valley Chamber of Commerce
          South Bay Association of Chambers of Commerce
          Southwest California Legislative Council
          The Chamber of Commerce Mountain View
          The Chamber of the Santa Barbara Region


          Opposition
          American Civil Liberties Union of California
          California Foundation for Independent Living Centers
          Californians for Disability Rights, Inc.
          Consumer Attorneys of California
          Disability Rights California
          (Numerous individuals)










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          Analysis Prepared  
          by:              Alison Merrilees/JUD./(916) 319-2334