Amended in Assembly May 21, 2015

Amended in Assembly May 6, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1521

Introduced by Committee on Judiciary (Assembly Members Mark Stone (Chair), Alejo, Chau, Chiu, Cristina Garcia, begin delete Holden, and O'Donnell end delete begin insert and end insert begin insert Holden end insert )

March 10, 2015

An act to amend Section 55.3 of the Civil Code, relating to disability access.

LEGISLATIVE COUNSEL’S DIGEST

AB 1521, as amended, Committee on Judiciary. Disability access: construction-related accessibility claims.

Existing law provides that individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, public facilities, and other public places, and allows a person who is aggrieved or potentially aggrieved by a violation of specific provisions of law to bring an action to enjoin the violation. Existing law requires an attorney to provide a written advisory with each demand letter or complaint, as defined, sent to or served upon a defendant or potential defendant for any construction-related accessibility claim, as specified.

This bill would require the above-described advisory to include additional information regarding the rights and obligations of business owners and commercial tenants, as specified. In addition to the written advisory, the bill would require an attorney to provide a defendant or potential defendant of a construction-related accessibility claim with an answer form developed by the Judicial Council, which would allow a defendant to respond in the event a complaint is filed, as specified. The bill would, on or before July 1, 2016, require the Judicial Council to update the advisory form and adopt the answer form, as specified.

The bill also would include technical changes to these provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 55.3 of the Civil Code is amended to
read:

55.3.  

(a) For purposes of this section, the following 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 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 with each
demand letter or complaint sent to or served upon a defendant or
potential defendant alleging a construction-related accessibility
claim:

(1) A written advisory on the form described in subparagraph
(B), or, until that form is available, on a separate page or pages
that are clearly distinguishable from the demand letter or complaint.
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.

(A) 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.

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 prelitigation demand letter from
an attorney MAY NOT MAKE A REQUEST OR DEMAND FOR
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 prelitigation 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 of California 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. 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 the matter results in a court judgment. 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 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 and consult with an attorney or
contact your landlord, 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.

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

(2) An answer form developed by the Judicial Council, which
allows a defendant to respond to the complaint in the event a
complaint is filed.

(A) The answer form shall be written in plain language and
allow the defendant to state any relevant information affecting the
defendant’s liability or damages including, but not limited to, the
following:

(i) Specific denials of the allegations in the complaint, including
whether the plaintiff has demonstrated that he or she was denied
full and equal access to the place of public accommodation on a
particular occasion pursuant to Section 55.56.

(ii) Potential affirmative defenses available to the defendant,
including:

(I) An assertion that the defendant qualifies for reduced damages
pursuant to paragraph (1) or (2) of subdivision (f) of Section 55.56,
and facts supporting that assertion.

(II) An assertion that the defendant’s landlord is responsible for
ensuring that some or all of the property leased by the defendant,
including the areas at issue in the complaint, are accessible to the
public. The defendant shall provide facts supporting that assertion,
and the name and contact information of the defendant’s landlord.

(III) Any other affirmative defense the defendant wishes to
assert.

(iii) Whether the defendant made a written settlement offer that
was rejected by the plaintiff, or met with the plaintiff in a good
faith effort to negotiate a settlement of the complaint.

(iv) Any other information that the defendant believes is relevant
to his or her potential liability or damages.

(B) The answer form shall provide instructions to a defendant
who wishes to file the form as an answer to the complaint. The
form shall also notify the defendant that he or she may use the
completed form as an informal response to a demand letter or for
settlement discussion purposes.

(C) On or before July 1, 2016, the Judicial Council shall adopt
the answer form that may be used by an attorney to comply with
the requirements of this paragraph, and shall post the answer form
on the Judicial Council Internet web site.

(c) Subdivision (b) applies only to a demand letter or complaint
made by an attorney. This section does not affect the right to file
a civil complaint under any other law or regulation protecting the
physical access rights of persons with disabilities. Additionally,
this section does not require a party to provide or send a demand
letter to another party before proceeding against that party with a
civil complaint.

(d) This section does not apply to an action brought by the
Attorney begin delete General, or by end delete begin insert General or end insert any district attorney, city
attorney, or county counsel.