Amended in Senate July 2, 2015

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, and Holden)

March 10, 2015

An act to amend begin delete Section 55.3 of end delete begin insert Sections 55, 55.3, and 55.54 of, and to add Section 54.35, end insert the Civil Code, begin insert to amend Section 425.50 of, and to add Sections 425.55 and 425.60 to, the Code of Civil Procedure, end insert begin insert to amend Section 19953 of the Health and Safety Code, end insert 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.

begin insert

Existing law authorizes commencement of an action for damages against persons who interfere with these access rights, including, but not limited to, actions against owners and tenants of property for construction-related barriers.

end insert begin insert

This bill would, with certain exceptions, require the owner of property to which the general public is invited to indemnify a microbusiness tenant, as defined, from liability arising from any construction-related accessibility claims, as specified.

end insert begin insert

This bill would require that the attorney, or the party in cases where the party is not represented by counsel, certify that specified conditions have been met, including, but not limited to, that the action is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay. By expanding the definition of the crime of perjury, this bill would impose a state-mandated local program.

end insert begin insert

Existing law entitles the prevailing party to recover reasonable attorney’s fees.

end insert begin insert

This bill would, instead, require the court to award costs and reasonable attorney’s fees to a prevailing plaintiff, and to award court costs and reasonable attorney’s fees to the defendant if the court finds that the plaintiff’s case is clearly frivolous.

end insert begin insert

This bill would, with certain exceptions, require a person who is represented by an attorney and has filed more than 15 lawsuits that allege construction-related accessibility violations against places of public accommodation within the prior 12 month-period, to seek and obtain approval of the court with respect to settlement of the case.

end insert begin insert

Existing law authorizes a defendant to file a request for a court stay and an early evaluation conference in the proceedings under certain circumstances, and tolls the period for responsive pleadings.

end insert begin insert

This bill would specify that these provisions also apply if a defendant is a business that has been served with a complaint filed by a high-frequency litigant, as defined, or is a business requesting an early evaluation conference.

end insert begin insert

Existing law, upon the filing of an application for a court stay and an early evaluation conference by a defendant, requires the court to immediately issue an order that does certain things, including, but not limited to, scheduling a mandatory early evaluation conference for a date as soon as possible from the date of the order, but in no event later than 70 days after the issuance of the order.

end insert begin insert

This bill would, if requested by the defendant, require the court order to direct the parties and their counsel to meet at the premises, or other place as specified, no later than 30 days after issuance of the court order, to jointly inspect the premises, and review any programmatic or policy issues, that are claimed to constitute a violation of a construction-related accessibility standard.

end insert begin insert

Existing law requires that an allegation of a construction-related accessibility claim in a complaint state facts sufficient to allow a reasonable person to identify the basis of the violation, including, but not limited to, a plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred.

end insert begin insert

This bill would, for cases filed by or on behalf of a high-frequency litigant, require the complaint to also state that the complaint is filed by, or on behalf of, a high-frequency litigant, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint, and the reason why the individual visited the place of public accommodation.

end insert begin insert

This bill would become operative only if Senate Bill 251 of the 2015-16 Legislative Session, relating to disability access, is enacted on or before January 1, 2016.

end insert begin insert

Existing Constitutional provisions require a statute that limits the right of public access to meeting or writings of public officials to be adopted with findings demonstrating the interested to be protected by that limitation and the need to protect that interest.

end insert begin insert

This bill would declare that it includes limitations on access, that the interests to be protected are the privacy rights of the litigants, and that the need to protect those interests is to prevent a chilling effect on litigation.

end insert begin insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

end insert begin delete

The bill also would include technical changes to these provisions.

end delete

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete no end delete begin insert yes end insert .

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

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 54.35 is added to the end insert begin insert Civil Code end insert begin insert , end insert immediately following Section 54.3 begin insert , to read: end insert

begin insert

begin insert 54.35. end insert   

(a) Notwithstanding any law, the owner of property to
which the general public is invited, as set forth in Section 54.1,
shall indemnify a microbusiness tenant of that property for any
liability under this part arising from any construction-related
accessibility claims if either of the following conditions apply:

(1) The construction-related barrier existed prior to the
initiation, renewal, or extension of the lease which is the basis of
the microbusiness tenant’s liability.

(2) The construction-related barrier was created by parties
other than the microbusiness tenant after the initiation, renewal,
or extension of the lease which is the basis of the microbusiness
tenant’s liability.

(b) The duty of the owner to indemnify a microbusiness tenant
pursuant to subdivision (a) may be modified through a written
agreement that may be included as a separate rider to the lease
agreement, setting forth the terms under which the microbusiness
tenant is accepting some or all of the potential liability for
construction-related claims, including, but not limited to, a grant
of the authority for the microbusiness tenant to modify the structure
in order to comply with this part, and a process for determining
the owner’s share of the costs of those modifications.

(c) For the purposes of this section, “microbusiness” has the
same meaning as set forth in Section 14837 of the Government
Code.

(d) This section shall apply only to construction-related liability
arising from leases entered into, amended, or extended, on and
after January 1, 2016.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 55 of the end insert begin insert Civil Code end insert begin insert is amended to read: end insert

55.  

Any person who is aggrieved or potentially aggrieved by
a violation of Section 54 or 54.1 of this code, Chapter 7
(commencing with Section 4450) of Division 5 of Title 1 of the
Government Code, or Part 5.5 (commencing with Section 19955)
of Division 13 of the Health and Safety Code may bring an action
to enjoin the violation. begin delete The prevailing party in the action shall be
entitled to recover reasonable attorney’s fees. end delete begin insert The court end insert begin insert shall award
costs and reasonable attorney’s fees to a prevailing plaintiff in an
action filed pursuant to this section. If the court finds that the
plaintiff’s case is clearly frivolous, it shall award court costs and
reasonable attorney’s fees to the defendant. end insert

begin delete SECTION 1. end delete
begin insert SEC. 3. end insert   

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 General or any district attorney, city attorney, or county
counsel.

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 55.54 of the end insert begin insert Civil Code end insert begin insert is amended to read: end insert

55.54.  

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

ADVISORY NOTICE TO DEFENDANT

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

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

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

 
IN ADDITION, if your business is a small business that,
over the previous three years, or the existence of the business
if less than three years, employs 25 or fewer employees on
average over that time period and meets specified gross
receipts criteria, you may also be entitled to the court stay and
early evaluation begin delete conference end delete begin insert conference, if the plaintiff in this
case has filed more than 15 lawsuits that allege
construction-related accessibility claims against places of
public accommodation in the 12 months prior to the date of
this lawsuit. If you are a small businesses that meets the
employee and gross receipts criteria, you may also be entitled
to a court stay and an early evaluation conference, end insert and your
minimum statutory damages for each claim may be reduced
to $2,000 for each offense, unless the violation was intentional,
and if all the alleged construction-related accessibility
violations are corrected within 30 days of being served with
the complaint.

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

 
The court will schedule the conference to be held within begin delete 70 end delete
begin insert 90 end insert days after you file the attached application form.

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

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

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

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

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

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

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

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

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

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

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

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

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

begin insert

(D) The defendant is a small business, as described in
subdivision (f) of Section 55.56, that has been served with a
complaint filed by a high-frequency litigant, as defined in
subdivision (b) of Section 425.55 of the Code of Civil Procedure,
asserting a construction-related accessibility claim, including, but
not limited to, a claim brought under Section 51, 54, 54.1, or 55.

end insert

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

begin insert

(7) An application for an early evaluation conference and stay
by a defendant described by subparagraph (D) of paragraph (2)
of subdivision (b) shall include a declaration that the defendant
is a small business that employs 25 or fewer employees and meets
the gross receipts eligibility criteria provided in paragraph (2) of
subdivision (f) of Section 55.56 and shall also include both of the
following, which shall be confidential documents filed only with
the court and not served upon or available to the plaintiff:

end insert begin insert

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

end insert begin insert

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

end insert begin delete

(7)

end delete

begin insert (8) end insert  The following provisional request and notice forms may be
used and filed by a qualified defendant until forms are adopted by
the Judicial Council for those purposes pursuant to subdivision
(l):

PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE
INSERTED

[3 pages]

begin delete

(8)

end delete

begin insert (9) end insert  The provisional forms and any replacement Judicial Council
forms shall include the defendant’s declaration of proof of service
of the application, the notice of the court’s order, and the court’s
order pursuant to subdivision (d).

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

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

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

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

(4) (A) Directs the qualified defendant to file with the court
and serve on the plaintiff a copy of any relevant CASp inspection
report at least 15 days before the date of the conference. The CASp
inspection report is confidential and is available only as set forth
in paragraph (5) of this subdivision and in paragraph (4) of
subdivision (e).

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

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

(5) Directs the parties that the CASp inspection report may be
disclosed only to the court, the parties to the action, the parties’
attorneys, those individuals employed or retained by the attorneys
to assist in the litigation, and insurance representatives or others
involved in the evaluation and settlement of the case.

begin insert

(6) If the defendant so requests, directs the parties that no later
than 30 days after issuance of the court order the parties and their
counsel, accompanied by their experts if the parties so elect, shall
meet in person at the subject premises. If plaintiff alleges only
programmatic or policy violations, the parties and their counsel
may meet in person at any mutually agreeable location. They shall
jointly inspect the portions of the subject premises, and shall review
any programmatic or policy issues, that are claimed to constitute
a violation of a construction-related accessibility standard.

end insert begin delete

(6)

end delete

begin insert (7) end insert  Directs the plaintiff to file with the court and serve on the
defendant at least 15 days before the date of the conference a
statement that includes, to the extent reasonably known, for use
solely for the purpose of the early evaluation conference, all of the
following:

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

(B) The amount of damages claimed.

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

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

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

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

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

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

(4) The CASp inspection report filed and served pursuant to
subdivision (d) shall remain confidential throughout the stay and
shall continue to be confidential until the conclusion of the claim,
whether by dismissal, settlement, or final judgment, unless there
is a showing of good cause by any party. Good cause may include
the defendant’s failure to make reasonably timely progress toward
completion of corrections noted by a CASp. The confidentiality
of the inspection report shall terminate upon the conclusion of the
claim, unless the owner of the report obtains a court order pursuant
to the California Rules of Court to seal the record.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 425.50 of the end insert begin insert Code of Civil Procedure end insert begin insert is
amended to read: end insert

425.50.  

(a) An allegation of a construction-related accessibility
claim in a complaint, as defined in subdivision (a) of Section 55.52
of the Civil Code, shall state facts sufficient to allow a reasonable
person to identify the basis of the violation or violations supporting
the claim, including all of the following:

(1) A plain language explanation of the specific access barrier
or barriers the individual encountered, or by which the individual
alleges he or she was deterred, with sufficient information about
the location of the alleged barrier to enable a reasonable person to
identify the access barrier.

(2) The way in which the barrier denied the individual full and
equal use or access, or in which it deterred the individual, on each
particular occasion.

(3) The date or dates of each particular occasion on which the
claimant encountered the specific access barrier, or on which he
or she was deterred.

begin insert

(4) (A) Except in complaints that allege physical injury or
damage to property, a complaint filed by or on behalf of a
high-frequency litigant shall also state all of the following:

end insert begin insert

(i) That the complaint is filed by, or on behalf of, a
high-frequency litigant.

end insert begin insert

(ii) The number of complaints alleging a construction-related
accessibility claim that the high-frequency litigant has filed during
the 12 months prior to filing the complaint.

end insert begin insert

(iii) The reason the individual was in the geographic area of
the defendant’s business.

end insert begin insert

(iv) The reason why the individual desired to access the
defendant’s business, including the specific commercial, business,
personal, social, leisure, recreational, or other purpose.

end insert begin insert

(B) As used in this section “high-frequency litigant” has the
same meaning as set forth in subdivision (b) of Section 425.55.

end insert

(b) A complaint alleging a construction-related accessibility
claim, as those terms are defined in subdivision (a) of Section 55.3
of the Civil Code, shall be verified by the plaintiff. A complaint
filed without verification shall be subject to a motion to strike.

begin insert

(c) A complaint alleging a construction-related accessibility
claim shall be signed by at least one attorney of record in the
attorney’s individual name, or, if the party is not represented by
an attorney, shall be signed by the party. By signing the complaint,
the attorney or unrepresented party is certifying that, to the best
of the person’s knowledge, information, and belief, formed after
an inquiry reasonable under the circumstances, all of the following
conditions are met:

end insert begin insert

(1) It is not being presented primarily for an improper purpose,
such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation.

end insert begin insert

(2) The claims, defenses, and other legal contentions therein
are warranted by existing law or by a nonfrivolous argument for
the extension, modification, or reversal of existing law or the
establishment of new law.

end insert begin insert

(3) The allegations and other factual contentions have
evidentiary support or, if specifically so identified, are likely to
have evidentiary support after a reasonable opportunity for further
investigation or discovery.

end insert begin insert

(4) The denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on
a lack of information or belief.

end insert begin insert

(d) A court may, after notice and a reasonable opportunity to
respond, determine whether subdivision (c) has been violated and,
if so, impose sanctions as provided in Section 128.7 for violations
of subdivision (b) Section 128.7.

end insert begin delete

(c)

end delete

begin insert (e) end insert  Nothing in this section shall limit the right of a plaintiff to
amend a complaint under Section 472, or with leave of the court
under Section 473. However, an amended pleading alleging a
construction-related accessibility claim shall be pled as required
by subdivision (a).

begin delete

(d)

end delete

begin insert (f) end insert  This section shall become operative on January 1, 2013.

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 425.55 is added to the end insert begin insert Code of Civil Procedure end insert begin insert ,
to read end insert

begin insert

begin insert 425.55. end insert   

(a) The Legislature finds and declares all of the
following:

(1) Protection of the civil rights of persons with disabilities is
of the utmost importance to this state, and private enforcement is
the essential means of achieving that goal, as the law has been
designed.

(2) In recent years, a very small number of plaintiffs have filed
a disproportionately large number of the construction-related
accessibility claims in the state, from 70 to 300 lawsuits each year,
that are filed frequently against small businesses on the basis of
boilerplate complaints.

(3) Therefore, given these special and unique circumstances,
the provisions of this section are warranted for this limited group
of plaintiffs.

(b) For the purposes of this article, “high-frequency litigant”
means a person who utilizes court resources in actions arising
from alleged construction-related access violations at such a high
level that it is appropriate that additional safeguards apply so as
to ensure that the claims are warranted and appropriate. A
“high-frequency litigant” means plaintiff who has filed 15 or more
complaints alleging a construction-related accessibility violation
within the 12-month period immediately preceding the filing of
the current complaint alleging a construction-related accessibility
violation.

end insert

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 425.60 is added to the end insert begin insert Code of Civil Procedure end insert begin insert ,
to read: end insert

begin insert

begin insert 425.60. end insert   

(a) Any written settlement agreement regarding a
construction-related accessibility claim shall be filed by the
plaintiff with the California Commission on Disability Access
within 30 days of the execution of the agreement.

(b) Except as set forth in subdivision (e), a high frequency
litigant shall seek and obtain approval of the court with respect
to the settlement of a construction-related accessibility claim
against a small business as defined by subdivision (f) of section
55.56 to determine that the proposed settlement is lawful,
reasonable, and non-collusive.

(c) A party requesting court review of a settlement shall do so
by means of a motion for a settlement conference, which shall be
scheduled no later than 30 court days after the filing of the motion.
If the matter is not scheduled to be heard within 30 court days, the
settlement shall be deemed approved. A party requesting a court
review of the settlement shall attach a copy of the settlement
agreement or a description its material terms in the motion.

(d) If the court does not approve the settlement, it shall state
the reasons for decision in a written order and the litigation shall
proceed. If the hearing occurs prior to the expiration of a stay of
the proceedings pursuant to any provision of law, including, but
not limited to, Section 55.54, the court shall terminate the stay on
the date of the settlement conference.

(e) This section shall not apply in any of the following
circumstances:

(1) The settlement agreement provides for the removal or
remediation of some or all of the violations described in the
complaint by a specified date, unless removal or remediation of
the violations cannot be accomplished because of the closure or
elimination of the place of public accommodation or a feature or
element of the place of public accommodation or because the
public accommodation was temporary or ephemeral in nature,
such as an irregularly held festival, fair, performance, or athletic
games.

(2) The complaint alleges that the plaintiff suffered physical
injuries or damage to property.

(f) Nothing set forth in this section is intended to affect the law
of the interpretation of contracts. There is a presumption that
settlement agreements shall be enforceable. It shall be deemed
bad faith for any party to negotiate a settlement agreement and
then dispute the terms thereof at any hearing held under this
section absent good cause shown for a change in position. If the
defendant seeks to contest a settlement to which the defendant has
previously agreed, he or she shall do so by filing a notice of his
or her intent to dispute the settlement which shall be accompanied
by a declaration setting forth all of the reasons why the party
believes that circumstances have changed and that the settlement
is no longer just, fair, or enforceable. This notice shall be filed
with the court no later than 15 days before the date of the hearing
scheduled pursuant to subdivision (c) and shall be served on the
plaintiff concurrently with filing.

(g) An attorney who violates this section or Section 425.55,
shall be subject to discipline by the State Bar.

end insert

begin insert

begin insert SEC. 8. end insert   

end insert

begin insert Section 19953 of the end insert begin insert Health and Safety Code end insert begin insert is
amended to read: end insert

19953.  

Any person who is aggrieved or potentially aggrieved
by a violation of this part, Chapter 7 (commencing with Section
4450) of Division 5 of Title 1 of the Government Code, or Part
5.5 (commencing with Section 19955) of Division 13 of the Health
and Safety Code may bring an action to enjoin the violation. begin delete The
prevailing party in the action shall be entitled to recover reasonable
attorney’s fees. end delete begin insert end insert begin insert The court shall award costs and reasonable
attorney’s fees to a prevailing plaintiff in an action filed pursuant
to this section. If the court finds that the plaintiff’s case is clearly
frivolous, it shall award court costs and reasonable attorney’s
fees to the defendant. end insert

begin insert

begin insert SEC. 9. end insert   

end insert

begin insert This act shall become operative only if Senate Bill 251
of the 2015-16 Legislative Session, relating to disability access,
is enacted on or before January 1, 2016. end insert

begin insert

begin insert SEC. 10. end insert   

end insert

begin insert The Legislature finds and declares that Section 4 of
this act limits the public’s right of access to public documents
within the meaning of Section 3 of Article I of the California
Constitution. Pursuant to that constitutional provision, the
Legislature makes the following findings to demonstrate the interest
and the need for protecting that interest: end insert

begin insert

(a) The interest protected by this limitation is the privacy rights
of litigants.

end insert begin insert

(b) The need for protecting those interests is to preclude the
chilling effect on litigation if public disclosure were required.

end insert

begin insert

begin insert SEC. 11. end insert   

end insert begin insert

No reimbursement is required by this act pursuant
to Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

end insert