Amended in Senate September 3, 2015

Amended in Senate August 17, 2015

Amended in Senate July 16, 2015

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 BillNo. 1521


Introduced by Committee on Judiciary (Assembly Members Mark Stone (Chair), Chau, Chiu, Cristina Garcia, and Holden)

March 10, 2015


An act to amend Sectionsbegin delete 55.3end deletebegin insert 55.3, 55.32,end insert and 55.54begin delete of, and to add Section 54.35 to,end deletebegin insert ofend insert the Civil Code, to amend Section 425.50 of, and to add Section 425.55 to, the Code of Civil Procedure, and to add Sections 68085.35 and 70616.5 to the Government Code, relating to disability access, and declaring the urgency thereof, to take effect immediately.

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 withbegin delete anend deletebegin insert a verifiedend insert 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 delete

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 delete
begin delete

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 delete
begin insert

Existing law requires a demand letter alleging a violation of a construction-related accessibility standard or asserting a construction-related accessibility claim to include specified information and, among other things, until January 1, 2016, requires an attorney who provides a demand letter to send a copy of the demand letter to the State Bar of California.

end insert
begin insert

This bill would extend that requirement until January 1, 2019.

end insert
begin insert

Existing law requires an attorney who sends or serves a complaint on the basis of a construction-related accessibility claim to also send a copy of the complaint to the California Commission on Disability Access.

end insert
begin insert

This bill would additionally require the attorney to notify the commission within 5 business days of judgment, settlement, or dismissal of the claim or claims alleged in the complaint of specified information, including, among others, whether or not the construction-related accessibility violations alleged in the complaint were remedied in whole or in part after the plaintiff filed a complaint or provided a demand letter.

end insert

Existing law requires every pleading, petition, or other similar paper to be signed by an attorney, or the party in cases where the party is not represented by counsel, as specified. Existing law further provides that an attorney or unrepresented party who presents a pleading, petition, or other similar paper to the court is certifying 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.

This bill would specify that those requirements and provisions apply to a complaint alleging a construction-related accessibility claim.

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.

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.

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.

This bill would, if requested by the defendant, additionally 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. The bill would authorize the court to allow a plaintiff who is unable to meet in person at the premises to be excused from participation, or participate by alternative means, for good cause and would provide that a plaintiff or plaintiff’s counsel is not required to attend more than one in-person site meeting.

Existing law requires a complaint alleging a construction-related accessibility claim to be verified by the plaintiff or be subject to a motion to strike, and further 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.

This bill would, for cases filed by or on behalf of a high-frequency litigant, require the complaint to also statebegin delete thatend deletebegin insert whetherend insert 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. By expanding the definition of the crime of perjury, this bill would impose a state-mandated local program.

Existing law imposes a supplemental fee for filing first papers in certain civil proceedings, including, but not limited to, certain complex cases.

This bill would, in addition to the first paper filing fee, require payment of a single high-frequency litigant fee of $1,000, at the time of the filing of the first paper if the complaint alleges a construction-related accessibility claim and the plaintiff is a high-frequency litigant, and would make conforming changes related to the distribution of those fees.

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 interest to be protected by that limitation and the need to protect that interest.

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.

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.

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

This bill would declare that it is to take effect immediately as an urgency statute.

Vote: 23. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

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

begin deleteP5    1

SECTION 1.  

Section 54.35 is added to the Civil Code, 2immediately following Section 54.3, to read:

3

54.35.  

(a) Notwithstanding any law, the owner of property to
4which the general public is invited, as set forth in Section 54.1,
5shall indemnify a microbusiness tenant of that property for any
6liability under this part arising from any construction-related
7accessibility claims, as defined in paragraph (2) of subdivision (a)
8of Section 55.3, if the owner of the property had knowledge or
9notice that either of the following applied:

10(1) The construction-related barrier existed prior to the initiation,
11renewal, or extension of the lease which is the basis of the
12microbusiness tenant’s liability.

13(2) The construction-related barrier was created by parties other
14than the microbusiness tenant after the initiation, renewal, or
15extension of the lease which is the basis of the microbusiness
16tenant’s liability.

17(b) The duty of the owner to indemnify a microbusiness tenant
18pursuant to subdivision (a) may be modified through a written
19agreement that may be included as a separate rider to the lease
20agreement, setting forth the terms under which the microbusiness
21tenant is accepting some or all of the potential liability for
22construction-related claims, including, but not limited to, a grant
23of the authority for the microbusiness tenant to modify the structure
24in order to comply with this part, and a process for determining
25the owner’s share of the costs of those modifications.

26(c) For the purposes of this section, “microbusiness” has the
27same meaning as set forth in Section 14837 of the Government
28Code.

29(d) This section shall apply only to construction-related liability
30arising from leases entered into, amended, or extended, on and
31after January 1, 2016.

end delete
32

begin deleteSEC. 2.end delete
33begin insertSECTION 1.end insert  

Section 55.3 of the Civil Code is amended to read:

34

55.3.  

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

35(1) “Complaint” means a civil complaint that is filed or is to be
36filed with a court and is sent to or served upon a defendant on the
37basis of one or more construction-related accessibility claims, as
38defined in this section.

P6    1(2) “Construction-related accessibility claim” means any claim
2of a violation of any construction-related accessibility standard,
3as defined by paragraph (6) of subdivision (a) of Section 55.52,
4with respect to a place of public accommodation.
5“Construction-related accessibility claim” does not include a claim
6of interference with housing within the meaning of paragraph (2)
7of subdivision (b) of Section 54.1, or any claim of interference
8caused by something other than the construction-related
9accessibility condition of the property, including, but not limited
10to, the conduct of any person.

11(3) “Demand for money” means a prelitigation written document
12or oral statement that is provided or issued to a building owner or
13tenant, or the owner’s or tenant’s agent or employee, that does all
14of the following:

15(A) Alleges that the site is in violation of one or more
16construction-related accessibility standards, as defined in paragraph
17(6) of subdivision (a) of Section 55.52, or alleges one or more
18construction-related accessibility claims, as defined in paragraph
19(2).

20(B) Contains or makes a request or demand for money or an
21offer or agreement to accept money.

22(C) Is provided or issued whether or not the attorney intends to
23file a complaint, or eventually files a complaint, in state or federal
24court.

25(4) “Demand letter” means a prelitigation written document that
26is provided to a building owner or tenant, or the owner’s or tenant’s
27agent or employee, that alleges the site is in violation of one or
28more construction-related accessibility standards, as defined in
29paragraph (6) of subdivision (a) of Section 55.52, or alleges one
30or more construction-related accessibility claims, as defined in
31paragraph (2), and is provided whether or not the attorney intends
32to file a complaint, or eventually files a complaint, in state or
33federal court.

34(b) An attorney shall provide the following items with each
35demand letter or complaint sent to or served upon a defendant or
36potential defendant alleging a construction-related accessibility
37claim:

38(1) A written advisory on the form described in subparagraph
39(B), or, until that form is available, on a separate page or pages
40that are clearly distinguishable from the demand letter or complaint.
P7    1The advisory shall not be required in subsequent communications
2following the initial demand letter or initial complaint unless a
3new construction-related accessibility claim is asserted in the
4subsequent demand letter or amended complaint.

5(A) The advisory shall state as follows:

67STATE LAW REQUIRES THAT YOU GET THIS
8IMPORTANT ADVISORY INFORMATION FOR BUILDING
9OWNERS AND TENANTS
10

11This information is available in English, Spanish, Chinese,
12Vietnamese, and Korean through the Judicial Council of California.
13Persons with visual impairments can get assistance in viewing this
14form through the Judicial Council Internet Web site at
15www.courts.ca.gov.

16California law requires that you receive this information because
17the demand letter or court complaint you received with this
18document claims that your building or property does not comply
19with one or more existing construction-related accessibility laws
20or regulations protecting the civil rights of persons with disabilities
21to access public places.

22YOU HAVE IMPORTANT LEGAL OBLIGATIONS.
23Compliance with disability access laws is a serious and significant
24responsibility that applies to all California building owners and
25tenants with buildings open for business to the public. You may
26obtain information about your legal obligations and how to comply
27with disability access laws through the Division of the State
28Architect at www.dgs.ca.gov. Information is also available from
29the California Commission on Disability Access at
30www.ccda.ca.gov/guide.htm.

31YOU HAVE IMPORTANT LEGAL RIGHTS. The allegations
32made in the accompanying demand letter or court complaint do
33not mean that you are required to pay any money unless and until
34a court finds you liable. Moreover, RECEIPT OF A DEMAND
35LETTER OR COURT COMPLAINT AND THIS ADVISORY
36DOES NOT NECESSARILY MEAN YOU WILL BE FOUND
37LIABLE FOR ANYTHING. You will have the right if you are
38later sued to fully present your explanation why you believe you
39have not in fact violated disability access laws or have corrected
40the violation or violations giving rise to the claim.

P8    1You have the right to seek assistance or advice about this demand
2letter or court complaint from any person of your choice. If you
3have insurance, you may also wish to contact your insurance
4provider. Your best interest may be served by seeking legal advice
5or representation from an attorney, but you may also represent
6yourself and file the necessary court papers to protect your interests
7if you are served with a court complaint. If you have hired an
8attorney to represent you, you should immediately notify your
9attorney.

10If a court complaint has been served on you, you will get a
11separate advisory notice with the complaint advising you of special
12options and procedures available to you under certain conditions.

13ADDITIONAL THINGS YOU SHOULD KNOW:

14 ATTORNEY MISCONDUCT. Except for limited circumstances,
15state law generally requires that a prelitigation demand letter from
16an attorney MAY NOT MAKE A REQUEST OR DEMAND FOR
17MONEY OR AN OFFER OR AGREEMENT TO ACCEPT
18MONEY. Moreover, a demand letter from an attorney MUST
19INCLUDE THE ATTORNEY’S STATE BAR LICENSE
20NUMBER.

21If you believe the attorney who provided you with this notice
22and prelitigation demand letter is not complying with state law,
23you may send a copy of the demand letter you received from the
24attorney to the State Bar of California by facsimile transmission
25to 1-415-538-2171, or by mail to the State Bar of California, 180
26Howard Street, San Francisco, CA, 94105, Attention: Professional
27Competence.

28REDUCING YOUR DAMAGES. If you are a small business
29owner and correct all of the construction-related violations that
30are the basis of the complaint against you within 30 days of being
31served with the complaint, you may qualify for reducedbegin delete damages
32if the matter results in a court judgment. If you believe you qualify
33for reduced damages, youend delete
begin insert damages. Youend insert may wish to consult an
34attorney to obtain legalbegin delete advice, orend deletebegin insert advice. You may also wish toend insert
35 contact the California Commission on Disability Access for
36additional information about the rights and obligations of business
37owners.

38COMMERCIAL TENANT. If you are a commercial tenant, you
39may not be responsible for ensuring that some or all portions of
40the premises you lease for your business, including common areas
P9    1such as parking lots, are accessible to the public because those
2areas may be the responsibility of your landlord. You may want
3to refer to your lease agreement and consult with an attorney or
4contact your landlord, to determine if your landlord is responsible
5begin delete under the terms of your leaseend delete for maintaining and improving some
6or all of the areas youbegin delete lease to operate your business.end deletebegin insert lease.end insert


8(B) On or before July 1, 2016, the Judicial Council shall update
9the advisory form that may be used by an attorney to comply with
10the requirements of subparagraph (A). The advisory form shall be
11in substantially the same format and include all of the text set forth
12in subparagraph (A). The advisory form shall be available in
13English, Spanish, Chinese, Vietnamese, and Korean, and shall
14include a statement that the advisory form is available in additional
15languages, and the Judicial Council Internet Web site address
16where the different versions of the advisory form are located. The
17advisory form shall include Internet Web site information for the
18Division of the State Architect and the California Commission on
19Disability Access.

20(2) begin deleteAn end deletebegin insertA verified end insertanswer form developed by the Judicial
21Council, which allows a defendant to respond to the complaint in
22the event a complaint is filed.

23(A) The answer form shall be written in plain language and
24allow the defendant to state any relevant information affecting the
25defendant’s liability or damages including, but not limited to, the
26following:

27(i) Specific denials of the allegations in the complaint, including
28whether the plaintiff has demonstrated that he or she was denied
29full and equal access to the place of public accommodation on a
30particular occasion pursuant to Section 55.56.

31(ii) Potential affirmative defenses available to the defendant,
32including:

33(I) An assertion that the defendant’s landlord is responsible for
34ensuring that some or all of the property leased by the defendant,
35including the areas at issue in the complaint, are accessible to the
36public. The defendant shall provide facts supporting that assertion,
37and the name and contact information of the defendant’s landlord.

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

P10   1(iii) A request to meet in person at the subject premises, if the
2defendant qualifies for an early evaluation conference pursuant to
3Section 55.54.

4(iv) Any other information that the defendant believes is relevant
5to his or her potential liability or damages, including that the
6defendant qualifies for reduced damages pursuant to paragraph
7(1) or (2) of subdivision (f) of Section 55.56, and, if so, any facts
8supporting that assertion.

9(B) The answer form shall provide instructions to a defendant
10who wishes to file the form as an answer to the complaint. The
11form shall also notify the defendant that he or she may use the
12completed form as an informal response to a demand letter or for
13settlement discussion purposes.

14(C) On or before July 1, 2016, the Judicial Council shall adopt
15the answer form that may be used by an attorney to comply with
16the requirements of this paragraph, and shall post the answer form
17on the Judicial Council Internetbegin delete webend deletebegin insert Webend insert site.

18(c) Subdivision (b) applies only to a demand letter or complaint
19made by an attorney. This section does not affect the right to file
20a civil complaint under any other law or regulation protecting the
21physical access rights of persons with disabilities. Additionally,
22this section does not require a party to provide or send a demand
23letter to another party before proceeding against that party with a
24civil complaint.

25(d) This section does not apply to an action brought by the
26Attorney General or any district attorney, city attorney, or county
27counsel.

28begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 55.32 of the end insertbegin insertCivil Codeend insertbegin insert, as added by Section
295 of Chapter 383 of the Statutes of 2012, is amended to read:end insert

30

55.32.  

(a) An attorney who provides a demand letter, as defined
31in subdivision (a) of Section 55.3, shall do all of the following:

32(1) Include the attorney’s State Bar license number in the
33demand letter.

34(2) Contemporaneously with providing the demand letter, send
35a copy of the demand letter to the State Bar of California by
36facsimile transmission at 1-415-538-2171, or by mail to 180
37Howard Street, San Francisco, CA, 94105, Attention: Professional
38Competence.

P11   1(3) Within five business days of providing the demand letter,
2send a copy of the demand letter to the California Commission on
3Disability Access.

4(b) An attorney who sends or serves a complaint, as defined in
5subdivision (a) of Section 55.3, shallbegin delete sendend deletebegin insert do both of the following:end insert

6begin insert(1)end insertbegin insertend insertbegin insertSendend insert a copy of the complaint to the California Commission
7on Disability Access within five business days of sending or
8serving the complaint.

begin insert

9(2) Notify the California Commission on Disability Access within
10five business days of judgment, settlement, or dismissal of the claim
11or claims alleged in the complaint of the following information in
12a standard format specified by the commission:

end insert
begin insert

13(A) The date of the judgment, settlement, or dismissal.

end insert
begin insert

14(B) Whether or not the construction-related accessibility
15violations alleged in the complaint were remedied in whole or in
16part after the plaintiff filed a complaint or provided a demand
17letter, as defined by Section 55.3.

end insert
begin insert

18(C) If the construction-related accessibility violations alleged
19in the complaint were not remedied in whole or in part after the
20plaintiff filed a complaint or provided a demand letter, as defined
21by Section 55.3, whether or not another favorable result was
22achieved after the plaintiff filed the complaint or provided the
23demand letter.

end insert
begin insert

24(D) Whether or not the defendant submitted an application for
25an early evaluation conference and stay pursuant to Section 55.54,
26whether the defendant requested a site inspection, the date of any
27early evaluation conference, and the date of any site inspection.

end insert

28(c) A violation of paragraph (2) or (3) of subdivision (a) or
29subdivision (b) shall constitute cause for the imposition of
30discipline of an attorney where a copy of thebegin delete complaint orend delete
31begin insert complaint,end insert demandbegin delete letterend deletebegin insert letter, or notification of a case outcomeend insert
32 is not sent to the California Commission on Disability Access
33within five business days, or a copy of the demand letter is not
34sent to the State Bar within five business days. In the event the
35State Bar receives information indicating that an attorney has failed
36to send a copy of thebegin delete complaint orend deletebegin insert complaint,end insert demandbegin delete letterend deletebegin insert letter,
37or notification of a case outcomeend insert
to the California Commission
38on Disability Access within five business days, the State Bar shall
39investigate to determine whether paragraph (3) of subdivision (a)
40or subdivision (b) has been violated.

P12   1(d) Notwithstanding subdivisions (a) and (b), an attorney is not
2required to send to the State Bar of California or the California
3Commission on Disability Access a copy of any subsequent
4demand letter or amended complaint in the same dispute following
5the initial demand letter or complaint, unless that subsequent
6demand letter or amended complaint alleges a new
7construction-related accessibility claim.

8(e) A demand letter or complaint sent to the California
9Commission on Disability Access shall be for the informational
10purposes of Section 8299.08 of the Government Code. A demand
11letter received by the State Bar from either the sender or recipient
12of the demand letter shall be reviewed by the State Bar to determine
13whether subdivision (b) or (c) of Section 55.31 has been violated.

14(f) (1) Commencing July 31, 2013, and annually each July 31
15thereafter, the State Bar shall report to the Legislature and the
16Chairs of the Senate and Assembly Committees on Judiciary, both
17of the following with respect to demand letters received by the
18State Bar:

19(A) The number of investigations opened to date on a suspected
20violation of subdivision (b) or (c) of Section 55.31.

21(B) Whether any disciplinary action resulted from the
22investigation, and the results of that disciplinary action.

23(2) A report to be submitted pursuant to this subdivision shall
24be submitted in compliance with Section 9795 of the Government
25Code.

26(g) The California Commission on Disability Access shall
27review and report on the demand letters and complaints it receives
28 as provided in Section 8299.08 of the Government Code.

29(h) Paragraphs (2) and (3) of subdivision (a) and subdivision
30(b) shall not apply to a demand letter or complaint sent or filed by
31an attorney employed or retained by a qualified legal services
32project or a qualified support center, as defined in Section 6213
33of the Business and Professions Code, when acting within the
34scope of employment in asserting a construction-related
35accessibility claim. The Legislature finds and declares that qualified
36legal services projects and support centers are extensively regulated
37by the State Bar of California, and that there is no evidence of any
38abusive use of demand letters or complaints by these organizations.
39The Legislature further finds that, in light of the evidence of the
40extraordinarily small number of construction-related accessibility
P13   1cases brought by regulated legal services programs, and given the
2resources of those programs, exempting regulated legal services
3programs from the requirements of this section to report to the
4California Commission on Disability Access will not affect the
5purpose of the reporting to, and tabulation by, the commission of
6all other construction-related accessibility claims.

7(i) This section shall become operative on January 1, 2013.

8(j) This section shall remain in effect only until January 1,begin delete 2016,end delete
9begin insert 2019,end insert and as of that date is begin delete repealed, unless a later enacted statute,
10that is enacted before January 1, 2016, deletes or extends that date.end delete

11begin insert repealed.end insert

12begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 55.32 of the end insertbegin insertCivil Codeend insertbegin insert, as added by Section
136 of Chapter 383 of the Statutes of 2012, is amended to read:end insert

14

55.32.  

(a) An attorney who provides a demand letter, as defined
15in subdivision (a) of Section 55.3, shall do all of the following:

16(1) Include the attorney’s State Bar license number in the
17demand letter.

18(2) Within five business days of providing the demand letter,
19send a copy of the demand letter to the California Commission on
20Disability Access.

21(b) An attorney who sends or serves a complaint, as defined in
22subdivision (a) of Section 55.3, shallbegin delete sendend deletebegin insert do both of the following:end insert

23begin insert(1)end insertbegin insertend insertbegin insertSendend insert a copy of the complaint to the California Commission
24on Disability Access within five business days of sending or
25serving the complaint.

begin insert

26(2) Notify the California Commission on Disability Access within
27five business days of judgment, settlement, or dismissal of the claim
28or claims alleged in the complaint of the following information in
29a standard format specified by the commission:

end insert
begin insert

30(A) The date of the judgment, settlement, or dismissal.

end insert
begin insert

31(B) Whether or not the construction-related accessibility
32violations alleged in the complaint were remedied in whole or in
33part after the plaintiff filed a complaint or provided a demand
34letter, as defined by Section 55.3.

end insert
begin insert

35(C) If the construction-related accessibility violations alleged
36in the complaint were not remedied in whole or in part after the
37plaintiff filed a complaint or provided a demand letter, as defined
38by Section 55.3, whether or not another favorable result was
39achieved after the plaintiff filed the complaint or provided the
40demand letter.

end insert
begin insert

P14   1(D) Whether or not the defendant submitted an application for
2an early evaluation conference and stay pursuant to Section 55.54,
3whether the defendant requested a site inspection, the date of any
4early evaluation conference, and the date of any site inspection.

end insert

5(c) A violation of paragraph (2) of subdivision (a) or subdivision
6(b) shall constitute cause for the imposition of discipline of an
7attorney if a copy of the demandbegin delete letter or complaintend deletebegin insert letter,
8complaint, or notification of a case outcomeend insert
is not sent to the
9California Commission on Disability Access within five business
10days. In the event the State Bar receives information indicating
11that an attorney has failed to send a copy of the demandbegin delete letter or
12complaintend delete
begin insert letter, complaint, or notification of a case outcomeend insert to
13the California Commission on Disability Access within five
14 business days, the State Bar shall investigate to determine whether
15paragraph (2) of subdivision (a) or subdivision (b) has been
16violated.

17(d) Notwithstanding subdivisions (a) and (b), an attorney is not
18required to send to the California Commission on Disability Access
19a copy of any subsequent demand letter or amended complaint in
20the same dispute following the initial demand letter or complaint,
21unless that subsequent demand letter or amended complaint alleges
22a new construction-related accessibility claim.

23(e) A demand letter sent to the California Commission on
24Disability Access shall be for the informational purposes of Section
258299.08 of the Government Code. A demand letter received by
26the State Bar from the recipient of the demand letter shall be
27reviewed by the State Bar to determine whether subdivision (b)
28or (c) of Section 55.31 has been violated.

29(f) (1) Notwithstanding Section 10231.5 of the Government
30Code, on or before July 31,begin delete 2016,end deletebegin insert 2019,end insert and annually thereafter,
31the State Bar shall report to the Legislature and the Chairs of the
32Senate and Assembly Judiciary Committees, both of the following
33with respect to demand letters received by the State Bar:

34(A) The number of investigations opened to date on a suspected
35violation of subdivision (b) or (c) of Section 55.31.

36(B) Whether any disciplinary action resulted from the
37investigation, and the results of that disciplinary action.

38(2) A report to be submitted pursuant to this subdivision shall
39be submitted in compliance with Section 9795 of the Government
40Code.

P15   1(g) The California Commission on Disability Access shall
2review and report on the demand letters and complaints it receives
3as provided in Section 8299.08 of the Government Code.

4(h) The expiration of any ground for discipline of an attorney
5shall not affect the imposition of discipline for any act prior to the
6expiration. An act or omission that constituted cause for imposition
7of discipline of an attorney when committed or omitted prior to
8January 1,begin delete 2016,end deletebegin insert 2019,end insert shall continue to constitute cause for the
9imposition of discipline of that attorney on and after January 1,
10begin delete 2016.end deletebegin insert 2019.end insert

11(i) Paragraph (2) of subdivision (a) and subdivision (b) shall
12not apply to a demand letter or complaint sent or filed by an
13attorney employed or retained by a qualified legal services project
14or a qualified support center, as defined in Section 6213 of the
15Business and Professions Code, when acting within the scope of
16employment in asserting a construction-related accessibility claim.
17The Legislature finds and declares that qualified legal services
18projects and support centers are extensively regulated by the State
19Bar of California, and that there is no evidence of any abusive use
20of demand letters or complaints by these organizations. The
21Legislature further finds that, in light of the evidence of the
22extraordinarily small number of construction-related accessibility
23cases brought by regulated legal services programs, and given the
24resources of those programs, exempting regulated legal services
25programs from the requirements of this section to report to the
26California Commission on Disability Access will not affect the
27purpose of the reporting to, and tabulation by, the commission of
28all other construction-related accessibility claims.

29(j) This section shall become operative on January 1,begin delete 2016.end delete
30begin insert 2019.end insert

31

begin deleteSEC. 3.end delete
32begin insertSEC. 4.end insert  

Section 55.54 of the Civil Code is amended to read:

33

55.54.  

(a) (1) An attorney who causes a summons and
34complaint to be served in an action that includes a
35construction-related accessibility claim, including, but not limited
36to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the
37same time, cause to be served a copy of the application form
38specified in subdivision (c) and a copy of the following notice,
39including, until January 1, 2013, the bracketed text, to the defendant
P16   1on separate papers that shall be served with the summons and
2complaint:


4ADVISORY NOTICE TO DEFENDANT


5
6YOU MAY BE ENTITLED TO ASK FOR A COURT
7STAY (AN ORDER TEMPORARILY STOPPING ANY
8LAWSUIT) AND EARLY EVALUATION CONFERENCE
9IN THIS LAWSUIT AND MAY BE ASSESSED REDUCED
10STATUTORY DAMAGES IF YOU MEET CERTAIN
11CONDITIONS.


12If the construction-related accessibility claim pertains to a
13site that has a Certified Access Specialist (CASp) inspection
14report for that site, or to a site where new construction or
15improvement was approved after January 1, 2008, by the local
16building permit and inspection process, you may make an
17immediate request for a court stay and early evaluation
18conference in the construction-related accessibility claim by
19filing the attached application form with the court. You may
20be entitled to the court stay and early evaluation conference
21regarding the accessibility claim only if ALL of the statements
22in the application form applicable to you are true.


23FURTHER, if you are a defendant described above (with a
24CASp inspection report or with new construction after January
251, 2008), and, to the best of your knowledge, there have been
26no modifications or alterations completed or commenced since
27the CASp report or building department approval of the new
28construction or improvement that impacted compliance with
29construction-related accessibility standards with respect to the
30plaintiff’s claim, your liability for minimum statutory damages
31may be reduced to $1,000 for each offense, unless the violation
32was intentional, and if all construction-related accessibility
33violations giving rise to the claim are corrected within 60 days
34of being served with this complaint.


35ALSO, if your business has been served with a complaint
36filed by a high-frequency litigant, as defined in subdivision
37(b) of Section 425.55 of the Code of Civil Procedure, asserting
38a construction-related accessibility claim, including, but not
39limited to, a claim brought under Section 51, 54, 54.1, or 55
40of the Civil Code, you may also be entitled to a courtbegin delete stay, end delete
P17   1begin insert stay and an end insertearly evaluationbegin delete conference, and a site visit.end delete
2begin insert conference.end insert If you choose to request a stay and early evaluation
3 conference, you may also request to meet in person with the
4plaintiff and counsel for both parties, as well as experts if the
5parties so elect, at the subject premises no later than 30 days
6after issuance of the court order to jointly inspect the portions
7of the subject premises and review any conditions that are
8claimed to constitute a violation of a construction-related
9accessibility standard.


10IN ADDITION, if your business is a small business that,
11over the previous three years, or the existence of the business
12if less than three years, employs 25 or fewer employees on
13average over that time period and meets specified gross
14receipts criteria, you may also be entitled to the court stay and
15early evaluation conference and your minimum statutory
16damages for each claim may be reduced to $2,000 for each
17offense, unless the violation was intentional, and if all the
18alleged construction-related accessibility violations are
19corrected within 30 days of being served with the complaint.


20If you plan to correct the violations giving rise to the claim,
21you should take pictures and measurements or similar action
22to document the condition of the physical barrier asserted to
23be the basis for a violation before undertaking any corrective
24action in case a court needs to see the condition of a barrier
25before it was corrected.


26The court will schedule the conference to be held within 70
27days after you file the attached application form.

28[If you are not a defendant with a CASp inspection report,
29until a form is adopted by the Judicial Council, you may use
30the attached form if you modify the form and supplement it
31with your declaration stating any one of the following:


32(1) Until January 1, 2018, that the site’s new construction
33or improvement on or after January 1, 2008, and before January
341, 2016, was approved pursuant to the local building permit
35and inspection process; that, to the best of your knowledge,
36there have been no modifications or alterations completed or
37commenced since the building department approval that
38impacted compliance with construction-related accessibility
39standards with respect to the plaintiff’s claim; and that all
P18   1violations giving rise to the claim have been corrected, or will
2be corrected within 60 days of the complaint being served.


3(2) That the site’s new construction or improvement passed
4inspection by a local building department inspector who is a
5certified access specialist; that, to the best of your knowledge,
6there have been no modifications or alterations completed or
7commenced since that inspection approval that impacted
8compliance with construction-related accessibility standards
9with respect to the plaintiff’s claim; and that all violations
10giving rise to the claim have been corrected, or will be
11corrected within 60 days of the complaint being served.


12(3) That your business is a small business with 25 or fewer
13employees and meets the gross receipts criteria set out in
14Section 55.56 of the Civil Code, and that all violations giving
15rise to the claim have been corrected, or will be corrected
16within 30 days of being served with the complaint.]


17The court will also issue an immediate stay of the
18proceedings unless the plaintiff has obtained a temporary
19restraining order in the construction-related accessibility claim.
20You may obtain a copy of the application form, filing
21instructions, and additional information about the stay and
22early evaluation conference through the Judicial Council
23Internet Web site at www.courts.ca.gov/selfhelp-start.htm.


24You may file the application after you are served with a
25summons and complaint, but no later than your first court
26pleading or appearance in this case, which is due within 30
27days after you receive the summons and complaint. If you do
28not file the application, you will still need to file your reply
29to the lawsuit within 30 days after you receive the summons
30and complaint to contest it. You may obtain more information
31about how to represent yourself and how to file a reply without
32hiring an attorney at www.courts.ca.gov/selfhelp-start.htm.


33You may file the application without the assistance of an
34attorney, but it may be in your best interest to immediately
35seek the assistance of an attorney experienced in disability
36access laws when you receive a summons and complaint. You
37may make an offer to settle the case, and it may be in your
38interest to put that offer in writing so that it may be considered
39under Section 55.55 of the Civil Code.


P19   1(2) An attorney who files a Notice of Substitution of Counsel
2to appear as counsel for a plaintiff who, acting in propria persona,
3had previously filed a complaint in an action that includes a
4construction-related accessibility claim, including, but not limited
5to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the
6same time, cause to be served a copy of the application form
7specified in subdivision (c) and a copy of the notice specified in
8paragraph (1) upon the defendant on separate pages that shall be
9attached to the Notice of Substitution of Counsel.

10(b) (1) Notwithstanding any other law, upon being served with
11a summons and complaint asserting a construction-related
12accessibility claim, including, but not limited to, a claim brought
13under Section 51, 54, 54.1, or 55, a qualified defendant, or other
14defendant as defined in paragraph (2), may file a request for a court
15stay and early evaluation conference in the proceedings of that
16claim prior to or simultaneous with that defendant’s responsive
17pleading or other initial appearance in the action that includes the
18claim. If that defendant filed a timely request for stay and early
19evaluation conference before a responsive pleading was due, the
20period for filing a responsive pleading shall be tolled until the stay
21is lifted. Any responsive pleading filed simultaneously with a
22request for stay and early evaluation conference may be amended
23without prejudice, and the period for filing that amendment shall
24be tolled until the stay is lifted.

25(2) This subdivision shall also apply to a defendant if any of
26the following apply:

27(A) Until January 1, 2018, the site’s new construction or
28improvement on or after January 1, 2008, and before January 1,
292016, was approved pursuant to the local building permit and
30inspection process, and the defendant declares with the application
31that, to the best of the defendant’s knowledge, there have been no
32modifications or alterations completed or commenced since that
33approval that impacted compliance with construction-related
34accessibility standards with respect to the plaintiff’s claim, and
35that all violations have been corrected, or will be corrected within
3660 days of being served with the complaint.

37(B) The site’s new construction or improvement was approved
38by a local public building department inspector who is a certified
39access specialist, and the defendant declares with the application
40that, to the best of the defendant’s knowledge, there have been no
P20   1modifications or alterations completed or commenced since that
2approval that impacted compliance with construction-related
3accessibility standards with respect to the plaintiff’s claim, and
4that all violations have been corrected, or will be corrected within
560 days of being served with the complaint.

6(C) The defendant is a small business described in subdivision
7(f) of Section 55.56, and the defendant declares with the application
8that all violations have been corrected, or will be corrected within
930 days of being served with the complaint.

10(D) The defendant is a business that has been served with a
11complaint filed by a high-frequency litigant, as defined in
12subdivision (b) of Section 425.55 of the Code of Civil Procedure,
13asserting a construction-related accessibility claim, including, but
14not limited to, a claim brought under Section 51, 54, 54.1, or 55.

15(3) Notwithstanding any other law, if the plaintiff had acted in
16propria persona in filing a complaint that includes a
17construction-related accessibility claim, including, but not limited
18to, a claim brought under Section 51, 54, 54.1, or 55, a qualified
19 defendant, or a defendant described by paragraph (2), who is served
20with a Notice of Substitution of Counsel shall have 30 days to file
21an application for a stay and an early evaluation conference. The
22application may be filed prior to or after the defendant’s filing of
23a responsive pleading or other initial appearance in the action that
24includes the claim, except that an application may not be filed in
25a claim in which an early evaluation conference or settlement
26conference has already been held on the claim.

27(c) (1) An application for an early evaluation conference and
28stay by a qualified defendant shall include a signed declaration
29that states both of the following:

30(A) The site identified in the complaint has been
31CASp-inspected or meets applicable standards, or is CASp
32determination pending or has been inspected by a CASp, and if
33the site is CASp-inspected or meets applicable standards, there
34have been no modifications completed or commenced since the
35date of inspection that may impact compliance with
36construction-related accessibility standards to the best of the
37defendant’s knowledge.

38(B) An inspection report pertaining to the site has been issued
39by a CASp. The inspection report shall be provided to the court
P21   1and the plaintiff at least 15 days prior to the court date set for the
2early evaluation conference.

3(2) An application for an early evaluation conference and stay
4by a defendant described by subparagraph (A) of paragraph (2) of
5subdivision (b), which may be filed until January 1, 2018, shall
6include a signed declaration that states all of the following:

7(A) The site’s new construction or improvement was approved
8pursuant to the local building permit and inspection process on or
9after January 1, 2008, and before January 1, 2016.

10(B) To the best of the defendant’s knowledge there have been
11no modifications or alterations completed or commenced since
12that approval that impacted compliance with construction-related
13accessibility standards with respect to the plaintiff’s claim.

14(C) All construction-related violations giving rise to the claim
15have been corrected, or will be corrected within 60 days of the
16complaint being served upon the defendant.

17(3) An application for an early evaluation conference and stay
18by a defendant described in subparagraph (B) of paragraph (2) of
19subdivision (b) shall include a signed declaration that states all of
20the following:

21(A) The site’s new construction or improvement was approved
22by a local building department inspector who is a certified access
23specialist.

24(B) To the best of the defendant’s knowledge there have been
25no modifications or alterations completed or commenced since
26that approval that impacted compliance with construction-related
27accessibility standards with respect to the plaintiff’s claim.

28(C) All construction related violations giving rise to the claim
29have been corrected, or will be corrected within 60 days of the
30complaint being served upon the defendant.

31(4) An application for an early evaluation conference and stay
32by a defendant described by subparagraph (C) of paragraph (2) of
33subdivision (b) shall include the materials listed in paragraphs (5)
34and (6) of this subdivision, and shall include a signed declaration
35that states both of the following:

36(A) The defendant is a small business that employs 25 or fewer
37employees and meets the gross receipts eligibility criteria provided
38in paragraph (2) of subdivision (f) of Section 55.56.

P22   1(B) All construction-related violations giving rise to the claim
2have been corrected, or will be corrected within 30 days of the
3complaint being served upon the defendant.

4(5) An application for an early evaluation conference and stay
5by a small business defendant under paragraph (4) shall include
6evidence showing correction of all violations within 30 days of
7the service of the complaint and served upon the plaintiff with the
8reply unless the application is filed prior to completion of the
9corrections. In that event, the evidence shall be provided to the
10court and served upon the plaintiff within 10 days of the court
11order as provided in paragraph (4) of subdivision (d). This
12paragraph shall not be construed to extend the permissible time
13under subdivision (f) of Section 55.56 to make the corrections.

14(6) An application for an early evaluation conference and stay
15by a small business defendant under paragraph (4) shall also
16include both of the following, which shall be confidential
17documents filed only with the court and not served upon or
18available to the plaintiff:

19(A) Proof of the defendant’s number of employees, as shown
20by wage report forms filed with the Employment Development
21Department.

22(B) Proof of the defendant’s average gross receipts for the
23previous three years, or for the existence of the business if less
24than three years, as shown by a federal or state tax document.

25(7) An application for an early evaluation conference and stay
26by a defendant described by subparagraph (D) of paragraph (2) of
27subdivision (b) shall include abegin insert signedend insert declaration that the defendant
28was served with a complaint filed by a high-frequency litigant, as
29defined in subdivision (b) of Section 425.55 of the Code of Civil
30Procedure, asserting a construction-related accessibility claim,
31including, but not limited to, a claim brought under Section 51,
3254, 54.1, or 55.

33(8) The following provisional request and notice forms may be
34used and filed by a qualified defendant until forms are adopted by
35the Judicial Council for those purposes pursuant to subdivision
36(l):

P23   1PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE
2INSERTED

[4 pages]

P27   1(9) The provisional forms and any replacement Judicial Council
2forms shall include the defendant’s declaration of proof of service
3of the application, the notice of the court’s order, and the court’s
4order pursuant to subdivision (d).

5(d) Upon the filing of an application for stay and early evaluation
6conference by a qualified defendant, or a defendant described by
7paragraph (2) of subdivision (b), the court shall immediately issue
8an order that does all of the following:

9(1) Grants a 90-day stay of the proceedings with respect to the
10construction-related accessibility claim, unless the plaintiff has
11obtained temporary injunctive relief that is still in place for the
12construction-related accessibility claim.

13(2) Schedules a mandatory early evaluation conference for a
14date as soon as possible from the date of the order, but in no event
15later than 70 days after issuance of the order, and in no event earlier
16than 50 days after the filing of the request.

17(3) Directs the parties, and any other person whose authority is
18required to negotiate and enter into settlement, to appear in person
19at the time set for the conference. Appearance by counsel shall not
20satisfy the requirement that the parties or those with negotiation
21and settlement authority personally appear, provided, however,
22that the court may allow a party who is unable to attend in person
23due to his or her disability to participate in the hearing by telephone
24or other alternative means or through a representative authorized
25to settle the case.

26(4) (A) Directs the qualified defendant to file with the court
27and serve on the plaintiff a copy of any relevant CASp inspection
28report at least 15 days before the date of the conference. The CASp
29inspection report is confidential and is available only as set forth
30in paragraph (5) of this subdivision and in paragraph (4) of
31subdivision (e).

32(B) Directs a defendant described by subparagraph (A) or (B)
33of paragraph (2) of subdivision (b) who has filed a declaration
34stating that the violation or violations have been corrected, or will
35be corrected within 60 days of service of the complaint to file with
36the court and serve on the plaintiff evidence showing correction
37of the violation or violations within 10 calendar days after the
38completion of the corrections.

39(C) Directs a defendant described by subparagraph (C) of
40paragraph (2) of subdivision (b) who has filed a declaration stating
P28   1that the violation or violations have been corrected, or will be
2corrected within 30 days of service of the complaint to file with
3the court and serve on the plaintiff within 10 days after issuance
4of the court order evidence of correction of the violation or
5violations, if that evidence showing correction was not filed
6previously with the application and served on the plaintiff.

7(5) Directs the parties that the CASp inspection report may be
8disclosed only to the court, the parties to the action, the parties’
9attorneys, those individuals employed or retained by the attorneys
10to assist in the litigation, and insurance representatives or others
11involved in the evaluation and settlement of the case.

12(6) If the defendant so requests, directs the parties that no later
13than 30 days after issuance of the court order the parties and their
14counsel, accompanied by their experts if the parties so elect, shall
15meet in person at the subject premises. They shall jointly inspect
16the portions of the subject premises, and shall review any
17programmatic or policy issues, that are claimed to constitute a
18violation of a construction-related accessibility standard. The court
19may allow a plaintiff who is unable to meet in person at the subject
20premises to be excused from participating in a site visit or to
21participate by telephone or other alternative means for good cause.
22A plaintiff or plaintiff’s counsel is not required, but may agree, to
23attend more than one in-person site meeting. A site inspection
24pursuant to this paragraph shall not affect the right of the parties
25to conduct otherwise appropriate discovery.

26(7) Directs the plaintiff to file with the court and serve on the
27defendant at least 15 days before the date of the conference a
28statement that includes, to the extent reasonably known, for use
29solely for the purpose of the early evaluation conference, all of the
30following:

31(A) An itemized list of specific conditions on the subject
32premises that are the basis of the claimed violations of
33 construction-related accessibility standards in the plaintiff’s
34complaint.

35(B) The amount of damages claimed.

36(C) The amount of attorney’s fees and costs incurred to date, if
37any, that are being claimed.

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

39(e) (1) A party failing to comply with any court order may be
40subject to court sanction at the court’s discretion.

P29   1(2) (A) The court shall lift the stay when the defendant has
2failed to file and serve the CASp inspection report prior to the
3early evaluation conference and has failed also to produce the
4report at the time of the early evaluation conference, unless the
5defendant shows good cause for that failure.

6(B) The court shall lift the stay when a defendant described by
7paragraph (2) of subdivision (b) has failed to file and serve the
8evidence showing correction of the violation or violations as
9required by law.

10(3) The court may lift the stay at the conclusion of the early
11evaluation conference upon a showing of good cause by the
12plaintiff. Good cause may include the defendant’s failure to make
13reasonably timely progress toward completion of corrections noted
14by a CASp.

15(4) The CASp inspection report filed and served pursuant to
16subdivision (d) shall remain confidential throughout the stay and
17shall continue to be confidential until the conclusion of the claim,
18whether by dismissal, settlement, or final judgment, unless there
19is a showing of good cause by any party. Good cause may include
20the defendant’s failure to make reasonably timely progress toward
21completion of corrections noted by a CASp. The confidentiality
22of the inspection report shall terminate upon the conclusion of the
23claim, unless the owner of the report obtains a court order pursuant
24to the California Rules of Court to seal the record.

25(f) All discussions at the early evaluation conference shall be
26subject to Section 1152 of the Evidence Code. It is the intent of
27the Legislature that the purpose of the evaluation conference shall
28include, but not be limited to, evaluation of all of the following,
29as applicable:

30(1) Whether the defendant is entitled to the 90-day stay for some
31or all of the identified issues in the case, as a qualified defendant.

32(2) The current condition of the site and the status of any plan
33of corrections, including whether the qualified defendant has
34corrected or is willing to correct the alleged violations, and the
35timeline for doing so.

36(3) Whether subdivision (f) of Section 55.56 may be applicable
37to the case, and whether all violations giving rise to the claim have
38been corrected within the specified time periods.

39(4) Whether the case, including any claim for damages or
40injunctive relief, can be settled in whole or in part.

P30   1(5) Whether the parties should share other information that may
2facilitate early evaluation and resolution of the dispute.

3(g) Nothing in this section precludes any party from making an
4offer to compromise pursuant to Section 998 of the Code of Civil
5Procedure.

6(h) For a claim involving a qualified defendant, as provided in
7paragraph (1) of subdivision (b), the court may schedule additional
8conferences and may extend the 90-day stay for good cause shown,
9but not to exceed one additional 90-day extension.

10(i) Early evaluation conferences shall be conducted by a superior
11court judge or commissioner, or a court early evaluation conference
12officer. A commissioner shall not be qualified to conduct early
13evaluation conferences pursuant to this subdivision unless he or
14she has received training regarding disability access requirements
15imposed by the federal Americans with Disabilities Act of 1990
16(Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), state laws
17that govern access to public facilities, and federal and state
18regulations adopted pursuant to those laws. For purposes of this
19subdivision, a “court early evaluation conference officer” means
20an attorney employed by the court who has received training
21regarding disability access requirements imposed by the federal
22Americans with Disabilities Act of 1990, state laws that govern
23access to public facilities, and federal and state regulations adopted
24pursuant to those laws. Attorneys serving in this capacity may also
25be utilized by the court for other purposes not related to these
26proceedings.

27(j) Nothing in this part shall be deemed to make any inspection
28report, opinion, statement, or other finding or conclusion of a CASp
29binding on the court, or to abrogate in any manner the ultimate
30authority of the court to make all appropriate findings of fact and
31law. The CASp inspection report and any opinion, statement,
32finding, or conclusion therein shall be given the weight the trier
33of fact finds that it deserves.

34(k) Nothing in this part shall be construed to invalidate or limit
35any California construction-related accessibility standard that
36 provides greater or equal protection for the rights of individuals
37with disabilities than is afforded by the federal Americans with
38Disabilities Act (Public Law 101-336; 42 U.S.C. Sec. 12101 et
39seq.) and the federal regulations adopted pursuant to that act.

P31   1(l) (1) The Judicial Council shall, by January 1, 2013, prepare
2and post on its Internet Web site instructions and a form for use
3by a qualified defendant, or other defendant described by paragraph
4(2) of subdivision (b), to file an application for stay and early
5evaluation conference as provided in subdivisions (b) and (c), a
6form for the court’s notice of stay and early evaluation conference,
7and any other forms appropriate to implement the provisions
8relating to early evaluation conferences. Until those forms are
9adopted, the Judicial Council shall post on its Internet Web site
10the provisional forms set forth in subdivision (c).

11(2) Until the adoption of the forms as provided in paragraph
12(1), the provisional application form may be used by a defendant
13described by paragraph (2) of subdivision (b).

14(3) In lieu of the provisions specified in number 3 of page 1 of
15the application form set forth in paragraph (7) of subdivision (c),
16the application shall include one of the following declarations of
17the defendant as to the basis for the application, as follows:

18(A) That all of the following apply to a defendant described by
19subparagraph (A) of paragraph (2) of subdivision (b):

20(i) The site’s new construction or improvement was approved
21pursuant to the local building permit and inspection process on or
22after January 1, 2008, and before January 1, 2016.

23(ii) To the best of the defendant’s knowledge there have been
24no modifications or alterations completed or commenced since
25that approval that impacted compliance with construction-related
26accessibility standards with respect to the plaintiff’s claim.

27(iii) All the violations giving rise to the claim have been
28corrected, or will be corrected within 60 days of the complaint
29being served.

30(B) That all of the following apply to a defendant described by
31subparagraph (B) of paragraph (2) of subdivision (b):

32(i) The site’s new construction or improvement was approved
33by a local public building department inspector who is a certified
34access specialist.

35(ii) To the best of the defendant’s knowledge there have been
36no modifications or alterations completed or commenced since
37that approval that impacted compliance with construction-related
38accessibility standards with respect to the plaintiff’s claim.

P32   1(iii) All the violations giving rise to the claim have been
2corrected, or will be corrected within 60 days of the complaint
3being served.

4(C) That both of the following apply to a defendant described
5by subparagraph (C) of paragraph (2) of subdivision (b):

6(i) The defendant is a small business described in paragraph (2)
7of subdivision (f) of Section 55.56.

8(ii) The violation or violations giving rise to the claim have been
9corrected, or will be corrected within 30 days of the complaint
10being served.

11(4) In lieu of the provision specified in number 4(c) of page 1
12of the application form set forth in paragraph (7) of subdivision
13(c), the application shall include a request that the court order the
14defendant to do either of the following:

15(A) For a defendant who has filed a declaration stating that all
16violations have been corrected, or will be corrected within 60 days
17of service of the complaint, file with the court and serve on the
18plaintiff evidence showing correction of the violation or violations
19within 10 calendar days of the completion of the corrections.

20(B) For a defendant who is a small business that has filed a
21declaration stating that all the violations have been corrected, or
22will be corrected within 30 days of the service of the complaint,
23file with the court and serve on the plaintiff evidence showing
24correction of the violation or violations within 10 calendar days
25after issuance of the court order, if that evidence showing correction
26was not filed previously with the application and served on the
27plaintiff.

28(5) The Judicial Council shall also prepare and post on its
29Internet Web site instructions and cover pages to assist plaintiffs
30and defendants, respectively, to comply with their filing
31responsibilities under subdivision (d). The cover pages shall also
32provide for the party’s declaration of proof of service of the
33pertinent document served under the court order.

34(m) The stay provisions shall not apply to any
35construction-related accessibility claim in which the plaintiff has
36been granted temporary injunctive relief that remains in place.

37(n) This section shall not apply to any action brought by the
38Attorney General, or by any district attorney, city attorney, or
39county counsel.

P33   1(o) The amendments to this section made by Senate Bill 1186
2of the 2011-12 Regular Session of the Legislature shall apply only
3to claims filed on or after the operative date of that act. Nothing
4in this part is intended to affect any complaint filed before that
5date.

6(p) Nothing in this part is intended to affect existing law
7regarding class action requirements.

8

begin deleteSEC. 4.end delete
9begin insertSEC. 5.end insert  

Section 425.50 of the Code of Civil Procedure is
10amended to read:

11

425.50.  

(a) An allegation of a construction-related accessibility
12claim in a complaint, as defined in subdivision (a) of Section 55.52
13of the Civil Code, shall state facts sufficient to allow a reasonable
14person to identify the basis of the violation or violations supporting
15the claim, including all of the following:

16(1) A plain language explanation of the specific access barrier
17or barriers the individual encountered, or by which the individual
18alleges he or she was deterred, with sufficient information about
19the location of the alleged barrier to enable a reasonable person to
20identify the access barrier.

21(2) The way in which the barrier denied the individual full and
22equal use or access, or in which it deterred the individual, on each
23particular occasion.

24(3) The date or dates of each particular occasion on which the
25claimant encountered the specific access barrier, or on which he
26or she was deterred.

27(4) (A) Except in complaints that allege physical injury or
28damage to property, a complaint filed by or on behalf of a
29high-frequency litigant shall also state all of the following:

30(i) begin deleteThat end deletebegin insertWhether end insertthe complaint is filed by, or on behalf of, a
31high-frequency litigant.

32(ii) In the case of a high-frequency litigant who is a plaintiff,
33the number of complaints alleging a construction-related
34accessibility claim that the high-frequency litigant has filed during
35the 12 months prior to filing the complaint.

36(iii) In the case of a high-frequency litigant who is a plaintiff,
37the reason the individual was in the geographic area of the
38defendant’s business.

39(iv) In the case of a high-frequency litigant who is a plaintiff,
40the reason why the individual desired to access the defendant’s
P34   1business, including the specific commercial, business, personal,
2social, leisure, recreational, or other purpose.

3(B) As used in this section “high-frequency litigant” has the
4same meaning as set forth in subdivision (b) of Section 425.55.

5(b) begin insert(1)end insertbegin insertend insertA complaint alleging a construction-related accessibility
6claim, as those terms are defined in subdivision (a) of Section 55.3
7of the Civil Code, shall be verified by the plaintiff. A complaint
8filed without verification shall be subject to a motion to strike.

begin insert

9(2) A complaint alleging a construction-related accessibility
10claim filed by, or on behalf of, a high-frequency litigant shall state
11in the caption “ACTION SUBJECT TO THE SUPPLEMENTAL
12FEE IN GOVERNMENT CODE SECTION 70616.5.”

end insert

13(c) A complaint alleging a construction-related accessibility
14claim shall be signed by at least one attorney of record in the
15attorney’s individual name, or, if the party is not represented by
16an attorney, shall be signed by the party. By signing the complaint,
17the attorney or unrepresented party is certifying that, to the best
18of the person’s knowledge, information, and belief, formed after
19an inquiry reasonable under the circumstances, all of the following
20conditions are met:

21(1) It is not being presented primarily for an improper purpose,
22such as to harass or to cause unnecessary delay or needless increase
23in the cost of litigation.

24(2) The claims, defenses, and other legal contentions therein
25are warranted by existing law or by a nonfrivolous argument for
26the extension, modification, or reversal of existing law or the
27establishment of new law.

28(3) The allegations and other factual contentions have
29evidentiary support or, if specifically so identified, are likely to
30have evidentiary support after a reasonable opportunity for further
31investigation or discovery.

32(4) The denials of factual contentions are warranted on the
33evidence or, if specifically so identified, are reasonably based on
34a lack of information or belief.

35(d) A court may, after notice and a reasonable opportunity to
36respond, determine whether subdivision (c) has been violated and,
37if so, impose sanctions as provided in Section 128.7 for violations
38of subdivision (b) of Section 128.7.

39(e) Nothing in this section shall limit the right of a plaintiff to
40amend a complaint under Section 472, or with leave of the court
P35   1under Section 473. However, an amended pleading alleging a
2construction-related accessibility claim shall be pled as required
3by subdivision (a).

begin insert

4(f) The determination whether an attorney is a high-frequency
5litigant shall be made solely on the basis of the verified complaint
6and any other publicly available documents. Notwithstanding any
7other law, no party to the proceeding may conduct discovery with
8respect to whether an attorney is a high-frequency litigant.

end insert
begin delete

9(f)

end delete

10begin insert(g)end insert This section shall become operative on January 1, 2013.

11

begin deleteSEC. 5.end delete
12begin insertSEC. 6.end insert  

Section 425.55 is added to the Code of Civil Procedure,
13to read:

14

425.55.  

(a) The Legislature finds and declares all of the
15following:

16(1) Protection of the civil rights of persons with disabilities is
17of the utmost importance to this state, and private enforcement is
18the essential means of achieving that goal, as the law has been
19designed.

20(2) According to information from the California Commission
21on Disability Access, more than one-half, or 54 percent, of all
22construction-related accessibility complaints filed between 2012
23and 2014 were filed by two law firms. Forty-six percent of all
24complaints were filed by a total of 14 parties. Therefore, a very
25small number of plaintiffs have filed a disproportionately large
26number of the construction-related accessibility claims in the state,
27from 70 to 300 lawsuits each year. Moreover, these lawsuits are
28frequently filed against small businesses on the basis of boilerplate
29complaints, apparently seeking quick cash settlements rather than
30correction of the accessibility violation. This practice unfairly
31taints the reputation of other innocent disabled consumers who are
32merely trying to go about their daily lives accessing public
33accommodations as they are entitled to have full and equal access
34under the state’s Unruh Civil Rights Act (Section 51 of the Civil
35Code) and the federal Americans with Disability Act of 1990
36(Public Law 101-336).

37(3) Therefore, given these special and unique circumstances,
38the provisions of this section are warranted for this limited group
39of plaintiffs.

P36   1(b) For the purposes of this article, “high-frequency litigant”
2means abegin delete personend deletebegin insert person, except as specified in paragraph (3),end insert who
3utilizes court resources in actions arising from alleged
4construction-related access violations at such a high level that it
5is appropriate that additional safeguards apply so as to ensure that
6the claims arebegin delete warranted and appropriate.end deletebegin insert warranted.end insert A
7“high-frequency litigant” means one or more of the following:

8(1) A plaintiff who has filed 10 or more complaints alleging a
9construction-related accessibility violation within the 12-month
10period immediately preceding the filing of the current complaint
11alleging a construction-related accessibility violation.

12(2) An attorney who has representedbegin insert as attorney of recordend insert 10
13or morebegin insert high-frequency litigantend insert plaintiffsbegin delete who were high-frequency
14litigants at the time when complaints alleging construction-related
15accessibility violations were filed on their behalfend delete
begin insert in actions that
16were resolvedend insert
within the 12-month period immediately preceding
17the filing of the current complaint alleging a construction-related
18accessibilitybegin delete violation.end deletebegin insert violation, excluding all of the following
19actions:end insert

begin insert

20(A) An action in which an early evaluation conference was held
21pursuant to Section 55.54 of the Civil Code.

end insert
begin insert

22(B) An action in which judgment was entered in favor of the
23plaintiff.

end insert
begin insert

24(C) An action in which the construction-related accessibility
25violations alleged in the complaint were remedied in whole or in
26part, or a favorable result was achieved, after the plaintiff filed a
27complaint or provided a demand letter, as defined in Section 55.3
28of the Civil Code.

end insert
begin insert

29(3) This section does not apply to an attorney employed or
30retained by a qualified legal services project or a qualified support
31center, as defined in Section 6213 of the Business and Professions
32Code, when acting within the scope of employment to represent a
33client in asserting a construction-related accessibility claim, or
34the client in such a case.

end insert
35

begin deleteSEC. 6.end delete
36begin insertSEC. 7.end insert  

Section 68085.35 is added to the Government Code, 37immediately following Section 68085.3, to read:

38

68085.35.  

(a) Fees collected under Section 70616.5 shall be
39deposited in a bank account established by the Administrative
40Office of the Courts for deposit of fees collected by the courts.

P37   1(b) For each one-thousand-dollar ($1,000) fee listed in
2subdivision (a), the Administrative Office of the Courts shall
3distribute specified amounts as follows:

4(1) Five hundred dollars ($500) to the General Fund for use,
5upon appropriation by the Legislature, by the California
6Commission on Disability Access.

7(2) The remainder of the fee to the Trial Court Trust Fund.

8(c) If any of the fees listed in subdivision (a) are reduced or
9partially waived, the amount of the reduction or partial waiver
10shall be deducted from the amount to be distributed to each fund
11in the same proportion as the amount each distribution bears to
12the total amount of the fee.

13(d) No revenue collected pursuant to Section 70616.5 shall be
14used to supplant existing program funding of the California
15Commission on Disability Access.

16

begin deleteSEC. 7.end delete
17begin insertSEC. 8.end insert  

Section 70616.5 is added to the Government Code, to
18read:

19

70616.5.  

(a) In addition to the first paper filing fee required
20by Section 70611 or 70613, a single high-frequency litigant fee
21shall be paid to the clerk on behalf of a plaintiff who is a
22high-frequency litigant, as that term is defined in Section 425.55
23of the Code of Civil Procedure, at the time of the filing of the first
24paper if the complaint alleges a construction-related accessibility
25claim, as those terms are defined in subdivision (a) of Section 55.3
26of the Civil Code.

27(b) The fee established by this section shall be one thousand
28dollars ($1,000). The fee shall be transmitted as provided in Section
2968085.35.

30(c) Failure to pay the fees required by this section shall have
31the same effect as the failure to pay a filing fee, and shall be subject
32to the same enforcement and penalties.

33

begin deleteSEC. 8.end delete
34begin insertSEC. 9.end insert  

The Legislature finds and declares that Section 3 of
35this act limits the public’s right of access to public documents
36within the meaning of Section 3 of Article I of the California
37Constitution. Pursuant to that constitutional provision, the
38Legislature makes the following findings to demonstrate the interest
39and the need for protecting that interest:

P38   1(a) The interest protected by this limitation is the privacy rights
2of litigants.

3(b) The need for protecting those interests is to preclude the
4chilling effect on litigation if public disclosure were required.

5

begin deleteSEC. 9.end delete
6begin insertSEC. 10.end insert  

No reimbursement is required by this act pursuant to
7Section 6 of Article XIII B of the California Constitution because
8the only costs that may be incurred by a local agency or school
9district will be incurred because this act creates a new crime or
10infraction, eliminates a crime or infraction, or changes the penalty
11for a crime or infraction, within the meaning of Section 17556 of
12the Government Code, or changes the definition of a crime within
13the meaning of Section 6 of Article XIII B of the California
14Constitution.

15

begin deleteSEC. 10.end delete
16begin insertSEC. 11.end insert  

This act is an urgency statute necessary for the
17immediate preservation of the public peace, health, or safety within
18the meaning of Article IV of the Constitution and shall go into
19immediate effect. The facts constituting the necessity are:

20In order to ensure that the courts are not overburdened and are
21able to provide access to the judicial system for all persons seeking
22redress of their construction-related accessibility claims, it is
23necessary that these reasonable requirements placed on
24high-frequency litigants take effect immediately.



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