BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1521 (Committee on Judiciary)
Version: August 17, 2015
Hearing Date: Aug 25, 2015
Fiscal: Yes
Urgency: Yes
NR
SUBJECT
Disability access: construction-related accessibility claims
DESCRIPTION
This bill would make various changes to the law as it pertains
to construction-related accessibility claims including:
requiring a high frequency litigant, as defined, to include
additional information in a complaint and pay $1,000 in
addition to the filing fee, as specified;
requiring the existing advisory, which must be provided to a
defendant with each demand letter or complaint, to include
additional information regarding the rights and obligations of
business owners and commercial tenants, as specified;
requiring an attorney to provide a defendant or potential
defendant 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;
requiring, if requested by the defendant, the court to order
the parties and their counsel to meet at the subject premises
to jointly inspect the premises, as specified;
requiring property owners to indemnify a microbusiness tenant,
as defined, from liability arising from any
construction-related accessibility claims, as specified; and
specifying that attorneys and/or plaintiffs must 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, as specified.
BACKGROUND
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Since 1969, persons with disabilities have enjoyed protection
under Civil Code
Sections 54 and 54.1, which entitle individuals with
disabilities and medical conditions to full and free access to
and use of roadways, sidewalks, buildings and facilities open to
the public, hospitals and medical facilities, and housing. After
Congress enacted the Americans with Disabilities Act (ADA) in
1990, the state made a violation of the ADA also a violation of
Section 54 or 54.1. The state protections provided to disabled
persons are comparatively higher than those provided under the
ADA and are independent of the ADA.
Additionally, under the Unruh Civil Rights Act, all persons,
regardless of sex, race, color, religion, ancestry, national
origin, disability, medical condition, genetic information,
marital status, or sexual orientation are entitled to full and
equal accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind
whatsoever. (Civil Code Sec. 51.) A violation of the ADA also
constitutes a violation of Section 51. A violation of that
section subjects a person to actual damages incurred by an
injured party, plus treble actual damages, but in no event less
than $4,000, and any attorney's fees as the court may determine
to be proper. (Civil Code Sec. 52.)
The California Legislature has taken further steps to ensure
disability access laws are complied with. SB 262 (Kuehl,
Chapter 872, Statutes of 2003) established in the Division of
the State Architect, a voluntary "access specialist
certification program" in order to assist business and property
owners in complying with ADA and state access laws. In 2003 and
2005, several bills were introduced after multiple lawsuits were
filed in state court by a few plaintiffs and attorneys against
business owners and operators for allegedly technical violations
of the state's access or ADA regulations. (SB 69 (Oller, 2003),
AB 209 (Leslie, 2003), AB 20 (Leslie, 2005), SB 855 (Poochigian,
2005).) Three of those bills would have required a plaintiff to
undertake prelitigation steps prior to the filing of a
complaint, including providing notice to the owner of the
property or business of the alleged violations, and provided a
specified time period for the owner or business to cure the
violations. One bill, (AB 20, Leslie, 2005) would have
precluded an action for damages for a de minimus violation,
allowing only injunctive relief and attorney's fees. All of
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those bills failed passage in the Judiciary Committees of their
respective houses.
In 2008, two bills were introduced relating to disability
access. AB 2533 (Keene, 2008) and SB 1766 (McClintock, 2008)
would have both imposed prelitigation hurdles on plaintiffs
claiming violations of construction-related disability access
laws. Both of these bills failed in the Judiciary Committees of
their respective houses. In 2011, SB 783 (Dutton, 2011) would
have established notice requirements for an aggrieved party to
follow before he or she can bring a disability access suit and
given the business owner a 120-day time period to remedy the
violation. That bill failed passage in this Committee.
Alternatively, SB 1608 (Corbett et al., Ch. 549, Stats. 2008),
which took effect January 1, 2009, did not create any
pre-litigation hurdles for a person with a disability but
instead, among other things, provided for an early evaluation of
a filed complaint if the defendant is a qualified defendant who
had the identified place of public accommodation inspected and
determined to meet applicable physical access standards by a
state Certified Access Specialist (CASp) prior to the filing of
the complaint.
In 2012, Senators Steinberg and Dutton authored SB 1186 (Ch.
383, Stats. 2012) which sought to comprehensively address
continued issues with disability litigation. SB 1186 created a
number of protections for small businesses and defendants who
had, prior to a claim being filed, sought out a CASp inspection.
These protections included reduced minimum statutory damages,
early evaluation conferences, and mandatory stays of court
proceedings while the violations were corrected. That bill also
prevented the stacking of multiple claims to increase damages,
banned pre-litigation demands for money, and increased data
collection regarding alleged access violations.
Subsequently, data collected by the California Commission on
Disability Access indicated that of the 5,392 access-related
complaints filed between September 2012 and October 2014, 54
percent of the cases were filed by two law firms, and 14
plaintiffs were involved in 46 percent of the cases.
Accordingly, this bill seeks to further limit the practice of
high-volume lawsuits by, among other provisions, placing
additional procedural requirements on high frequency litigants
and attorneys.
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CHANGES TO EXISTING LAW
1.Existing federal law , the Americans with Disabilities Act
(ADA), provides that no individual shall be discriminated
against on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation by any person who owns, leases, or leases to, or
operates a place of public accommodation. (42 U.S.C. Sec.
12182.)
Existing law , the Unruh Civil Rights Act, declares that all
persons, regardless of sex, race, color, religion, ancestry,
national origin, disability, medical condition, genetic
information, marital status, or sexual orientation are
entitled to the full and equal accommodations, advantages,
facilities, privileges, or services in all business
establishments of every kind whatsoever. (Civ. Code Sec. 51 et
seq.)
Existing law requires that an attorney who provides a demand
letter must do the following:
include the attorney's State Bar license number in the
demand letter; and
provide a copy of the demand letter to the State Bar and
the California Commission on Disability Access. (Civ. Code
Sec. 55.32(a) and (b), repealed January 1, 2016.)
Existing law provides that statutory damages may be recovered
in a construction-related accessibility claim only if a
violation or violations of one or more construction-related
accessibility standards denied the plaintiff full and equal
access to the place of public accommodation on a particular
occasion, by personally encountering the violation or being
deterred from accessing the public accommodation on a
particular occasion. (Civ. Code Sec. 55.56.)
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Existing law requires a plaintiff in a construction-related
accessibility claim to state facts sufficient to allow a
reasonable person to identify the basis of the violation or
violations supporting the claim, including a plain language
explanation of the specific access barrier or barriers the
individual encountered, the location of the barrier, how the
barrier denied the individual access, and the day or dates on
which the plaintiff was deterred. (Code Civ. Proc. Sec.
425.50.)
Existing law reduces a defendant's minimum liability for
statutory damages in a construction-related accessibility
claim against a place of public accommodation to $1,000 for
each unintentional offense if the defendant has had a CASp
inspection, or occupies a building constructed after 2008, and
corrected all construction-related violations that are the
basis of the claim within 60 days of being served with the
complaint. (Civ. Code Sec. 55.56(f)(1).)
Existing law reduces a defendant's minimum liability for
statutory damages to $2,000 for each unintentional offense if
the defendant has corrected all construction-related
violations that are the basis of the claim within 30 days of
being served with the complaint and the defendant is a small
business, defined as less than $3.5 million in gross receipts
and 25 or fewer employees, on average, over the past three
years. (Civ. Code Sec. 55.56(f)(2).)
This bill would additionally require that any complaint filed
by a high frequency litigant state the following:
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 past 12 months, as specified;
the reason the individual was in the geographic area of
the defendant's business, as specified; and
the reason why the individual desired to access the
defendant's business, including the specific commercial,
business, personal, social, leisure, recreational, or other
purpose, as specified.
This bill would require that any complaint alleging a
construction-related accessibility violation be signed by the
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attorney of record, or party if the plaintiff is representing
himself, and that the signature certifies the following:
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;
the claims, defenses, and other legal contentions
therein are warranted by existing law;
the allegations and other factual contentions have
evidentiary support, as specified; and
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.
This bill would state that a court may, after notice and a
reasonable opportunity to respond, impose sanctions on an
attorney for violation of the above requirements.
1.Existing law requires that a written advisory, with
information about state access laws, be provided by an
attorney to the defendant along with the initial demand letter
or complaint. (Civ. Code Secs. 55.3 and 55.54)
Existing law provides that upon being served with a complaint
asserting a construction-related accessibility claim, a
defendant may move for a 90-day stay and early evaluation
conference if the defendant is:
until January 1, 2018, a defendant whose site was
approved pursuant to the local building permit and
inspection process after January 1, 2008, and the defendant
declares that all violations have been corrected, or will
be corrected within 60 days of being served the complaint;
a defendant whose site had new construction or
improvement that was approved by a local public building
department inspector who is a CASp and the defendant
declares that all violations have been corrected, or will
be corrected within 60 days of being served the complaint;
or
a defendant who is a small business, as described, and
the process and the defendant declares that all violations
have been corrected, or will be corrected within 30 days of
being served the complaint. (Civ. Code Sec. 55.54.)
This bill would revise the written advisory to include
additional information about liability allocation for
construction-related accessibility claims, and state that some
defendants may be able to reduce damages.
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This bill would require the Judicial Council, on or before
July 1, 2016, to develop a form for defendant businesses to
respond to a complaint alleging a construction-related
accessibility violation which includes the following
information:
space for 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;
space for potential affirmative defenses available to
the defendant, including an assertion that the defendant's
landlord is responsible;
any request to meet in person at the subject premises;
whether the defendant qualifies for reduced damages; and
instructions to a defendant who wishes to file the form
as an answer to the complaint.
This bill would additionally allow a defendant business who
has been served with a complaint by a high frequency litigant
to request for a court stay and early evaluation conference.
This bill would require the court to order, upon a defendant's
request, the parties and their counsel to meet at the subject
premises to jointly inspect the premises and review any issues
that are claimed to constitute a violation of a
construction-related accessibility standard. This bill would
authorize the court to excuse a plaintiff who is unable, for
good cause, to meet in person at the subject premises to be
excused from participating in a site visit, as specified.
This bill would define a high frequency litigant as:
a plaintiff who has filed 10 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; or
an attorney who has represented 10 or more plaintiffs
who were high-frequency litigants at the time when
complaints alleging construction-related accessibility
violations were filed on their behalf within the 12-month
period immediately preceding the filing of the current
complaint alleging a construction-related accessibility
violation.
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This bill makes various findings and declarations including:
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;
these lawsuits are frequently filed against small
businesses on the basis of boilerplate complaints,
apparently seeking quick cash settlements rather than
correction of the accessibility violation; and
this practice unfairly taints the reputation of other
innocent disabled consumers who are merely trying to go
about their daily lives accessing public accommodations as
they are entitled to have full and equal access under the
state's Unruh Civil Rights Act.
This bill would require a high frequency litigant to pay
$1000, in addition to the first filing fee, to be divided
evenly between the trial court trust fund and the General Fund
for use, as specified, by the California Commission on
Disability Access.
COMMENT
1.Stated need for the bill
According to the author:
California has approximately 3.3 million small businesses.
According to data compiled by the Commission, from January
2014 until January 2015, 3,468 demand letters and complaints
were filed in the state. This means that less than one
percent of small businesses (and a far smaller percentage of
all businesses) were sued in 2014 for violations of
construction-related accessibility standards.
Nevertheless, some of the information reported to the
Commission is alarming in terms of the number and frequency of
construction-related accessibility lawsuits being filed by a
small number of law firms in California. According to the
Commission, between September 2012 and October 2014, 5,392
complaints (including demand letters) were filed (in both
state and federal courts). More than half (54 percent) of the
complaints were filed by just two law firms. Forty-six
percent of all complaints were filed by just 14 parties. These
figures indicate that the vast majority of the
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construction-related accessibility lawsuits filed in this
state are filed by a very small number of plaintiffs and their
attorneys.
AB 1521 seeks to limit the practice of high-volume lawsuits
motivated by the goal of obtaining quick settlements with
business owners, rather than correcting violations of
construction-related accessibility standards.
2.High frequency litigants
This bill would impose additional procedural requirements on
"high frequency litigants (HFL)," defined as a plaintiff who has
filed 10 or more complaints alleging a construction-related
accessibility violation within the past 12 months, or an
attorney who has represented 10 or more HFL plaintiffs in the 12
months immediately preceding the filing of the current complaint
alleging a construction-related accessibility violation. The
Consumer Attorneys of California (CAOC) write in support:
We are working in good faith to find a solution that both
enhances disability access compliance, yet stops the abusive
practices of some attorneys who are suing small businesses for
fees, not compliance. We think the practices of these few
attorneys and plaintiffs who seek fees and not correction are
wrong and are an affront to people with disabilities and the
laws this state has enacted to protect the civil rights of
those with disabilities.
By placing new requirements on disabled litigants, this bill
raises the policy question of whether additional burdens should
be imposed on one class of plaintiff because of the sheer volume
of cases they file, without regard to the merits of each case or
legitimacy of the allegations. As discussed below, those
additional burdens would require only disabled plaintiffs (and
their attorneys) to comply with 1) a heightened pleading
standard, 2) a higher filing fee, and 3) a subject premises
visit at the request of a defendant.
a. Heightened pleading standard
This bill would require an HFL to identify himself or herself
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as an HFL and to provide specific information in a complaint
including the number of complaints alleging a
construction-related accessibility violation that the
plaintiff has filed during the past 12 months, the reason the
individual was in the geographic area of the defendant's
business, and the reason why the individual desired to access
the defendant's business.
As a general rule, information that lacks the ability to prove
or disprove an element of a claim lacks relevance and is
inadmissible. Relevant information that has the potential to
prejudice the trier of fact, be it a judge or jury, is
excluded if its probative value is outweighed by the
prejudicial effect. With regard to construction-related
accessibility violations, a plaintiff is required to prove
that he or she encountered an access barrier or was deterred
by an access barrier. Accordingly, this bill would appear to
require information be provided in the complaint that may not
otherwise be admissible because it may not prove or disprove
an element of the claim.
b. Higher filing fee
This bill would require HFLs to pay, in addition to the
standard filing fee, a $1,000 fee which would be divided
equally between the Trial Court Trust Fund and the General
Fund for use by the California Commission on Disability
Access. To justify treating HFLs differently than other
plaintiffs, this bill contains Legislative findings and
declarations including that "more than one-half, or 54
percent, of all construction-related accessibility complaints
filed between 2012 and 2014 were filed by two law firms.
Forty-six percent of all complaints were filed by a total of
14 parties. Therefore, 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. Moreover, these lawsuits are
frequently filed against small businesses on the basis of
boilerplate complaints, apparently seeking quick cash
settlements rather than correction of the accessibility
violation. This practice unfairly taints the reputation of
other innocent disabled consumers who are merely trying to go
about their daily lives accessing public accommodations as
they are entitled to have full and equal access under the
state's Unruh Civil Rights Act ? and the federal Americans
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with Disability Act of 1990 ...."
As a matter of practice, civil laws, including the ADA and
Unruh, are enforced through private actions. The ability to
seek relief when access has been denied due to a
construction-related access violation is the right of a
disabled person in the same way that a woman who has been
passed over for a promotion because of her gender or a
minority who was refused service based on his race, has the
right to sue the person who discriminated against them. The
author and the proponents of this bill have not alleged that
the HFLs are bringing unmeritorious cases, but instead that
they are filing too many cases without seeking compliance from
business owners.
c. Subject premises visit
This bill would require the court, if requested by a defendant
who qualifies for an early evaluation conference (see Comment
3(b) below), to order the parties and their counsel to meet at
the subject premises to inspect the issues that are the basis
of the claim, and would allow a court to excuse a plaintiff
from this meeting for good cause. The author writes that "for
the small number of plaintiffs who have a practice of filing
large numbers of ADA lawsuits, hoping for quick settlements ?
this requirement is extremely burdensome. For plaintiffs who
seek redress (and correction) of ADA violations, this process
is an effective way to reach a mutually agreeable compromise
and avoid the process of litigation."
Staff notes that this requirement would not be limited to
HFLs. Any qualified defendant (e.g., a small business, a
CASp-inspected business; new construction; or a business sued
by an HFL) could require the court to order this meeting.
Once requested by a qualified defendant, a plaintiff would
have to show "good cause" for why he or she should be excused
from this requirement, which may be a burden that a
self-represented plaintiff would struggle to satisfy. This
bill does not define "good cause," but raises the policy
question of whether a person should be required to return to
the scene where he or she was denied access and potentially
had a painful or highly embarrassing experience. In addition,
as noted by the author above, requiring a plaintiff to return
to the subject premises could, in many instances, be
"extremely burdensome."
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3.Regulating attorneys
In addition to regulating litigants, this bill would also define
an attorney as a high frequency litigant if he or she
represented more than 10 HFL plaintiffs in the 12 months
immediately preceding the filing of the current complaint
alleging a construction-related accessibility violation.
Disability Rights California, in opposition, writes that
designating attorneys who specialize in construction-related
accessibility litigation as HFLs, will restrict a valuable
resource that the disability community relies on when enforcing
access laws.
Lawyers are not litigants. We concur with the American Civil
Liberties Union (ACLU) and other opponents that targeting
lawyers in the definition of" high-frequency litigant" means
individuals with disabilities will face additional procedural
obstacles which further limit their ability to exercise their
civil rights for disability access violations. This will
occur simply because they chose a lawyer with an active
practice and represented 10 people that filed 10 claims in a
12- month period.
There is nothing inappropriate with a lawyer having a thriving
practice. In fact, these cases may be perfectly lawful and
often are the only means to address disability access
violations. Assuming that it is appropriate to subject the
claims of frequent plaintiffs to these procedures, it is not
appropriate to apply these hurdles to the cases filed by those
who hire a lawyer to file only one claim.
We also believe it is poor public policy and opens the door to
a "slippery slope" to impose additional procedural rules on
attorneys and their clients based on the number of cases in
which the lawyer has been involved. This precedent may spill
over into other practice areas, resulting in a chilling effect
on the legal profession. Additionally, imposing a higher
filing fee of $1000 on a plaintiff who is considered a "high
frequency litigant" will also have a chilling effect, limiting
access to the courts for many individuals with disabilities
who have limited incomes.
In support, the Consumer Attorneys of California argue that it
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is important to stop "the abusive practices of some attorneys
who are filing multiple lawsuits against mostly small businesses
and seeking fees, not compliance."
The American Civil Liberties Union of California (ACLU), in
opposition, further argues that a dangerous precedent to impose
special procedural rules on attorneys and their clients based on
the number of cases in which the lawyer has been involved. This
model could easily be extended to lawyers who represent other
unpopular causes and it will do little to curb the practices of
unethical attorneys because it would be relatively easy to not
trigger the requirement. The ACLU writes, "If there are
disreputable lawyers practicing in this area, they cannot do so
without a plaintiff. Regulating the cases filed by high-volume
plaintiffs, as the bill proposes, will therefore have the
desired effect of subjecting potentially suspect cases to
greater court scrutiny and supervision without to need to
include lawyers in the definition. While it may be imagined
that the targeted lawyers will simply find more plaintiffs in an
effort to avoid the limits on high-frequency plaintiffs, this
fear is belied by the facts and the law. Even assuming that
unscrupulous lawyers were attempt to solicit additional
plaintiffs to find disability access violations, existing law
prohibits this client solicitation. Moreover, it would take 30
people to replace one plaintiff who filed approximately 300
lawsuits in that period. If there was a large pool of people
willing to file many cases per year, high-filing plaintiffs
would not be the same very small group year after year."
This bill would also require that an attorney (or a
self-represented litigant) certify that: 1) to the best of the
person's knowledge, the complaint is not being presented
primarily for an improper purpose; 2) the legal contentions
therein are warranted by existing law; 3) the allegations and
other factual contentions have evidentiary support or, are
likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery; and 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.
Staff notes that this language is nearly identical to the
requirements set forth in the Code of Civil Procedure Section
128.7, which is controlling over construction-related
accessibility claims.
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4.Defendants in construction-related accessibility actions
This bill would create procedural protections for certain
defendant businesses who are served a complaint for an alleged
violation of a construction-related accessibility standard,
including subject premises meetings and allowing defendants who
are sued by an HFL to qualify for a court stay and an early
evaluation conference. This bill would also require that the
Judicial Council create an answer form for defendants in these
actions, which must be provided to a defendant along with a
demand letter or complaint.
a. Protections for defendants who have not taken steps to
bring their businesses into compliance
Under existing law there are a few types of qualified
defendants who qualify for certain procedural protections when
being sued for a construction-related accessibility violation:
1) a small business; 2) a business who has taken certain
proactive steps to make its premises compliant with access
laws; and 3) businesses whose buildings were constructed or
improved after 2008. This bill would, in effect, create a new
type of qualified defendant by providing that a business that
is sued by an HFL would qualify for a 90-day stay and early
evaluation conference as well.
As a matter of public policy, protections should arguably be
given to vulnerable parties, such as small businesses who may
not have the resources or sophistication to ensure a building
is compliant, or those who proactively try to bring a building
into compliance with existing law, such as businesses who
order a certified access specialist (CASp) inspection and are
actively trying to fix violations. However, granting
protections to businesses that have done nothing to correct
access violations would appear to not incentivize business
owners to proactively address access issues. In addition,
this particular provision may have the unintended consequence
of allowing a HFL to get into court earlier than he or she
otherwise would have, thus giving them preferential treatment.
The author further notes that since early evaluation
conferences have been available to certain defendants since
(SB 1608 (Corbett), Ch. 549, Stats. 2008) "more attorneys are
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choosing to file lawsuits in federal court, perhaps to avoid,
among other things, participating in EECs."
b. Judicial Council answer form
This bill would require the Judicial Council to create an
answer form, which would be provided to every defendant in a
construction-related accessibility action, and instructions
for those defendants who wish to personally file the form as
an answer to the complaint. This form would have space for a
defendant to respond to allegations in the complaint, list any
affirmative defenses, and any other information the defendant
thinks is relevant to his or her liability, including whether
the defendant believes he or she qualifies for reduced
statutory damages.
Construction-related access actions are complicated cases.
Multiple parties may be liable for violations, and whether or
not a property contains a violation depends on many factors.
As a practical matter, it is essential that a defendant
receiving the form understand that he or she may need to hire
an attorney, is not required to use the form, and that, absent
legal advice, could inadvertently make damaging admissions.
5.Allocating responsibility between property owner and tenant
This bill would require that a property owner indemnify a
microbusiness tenant for any construction-related barrier that
existed prior to the initiation, renewal, or extension of the
lease, as specified. The bill would also allow responsibility
for access to be allocated between the property owner and the
microbusiness tenant by written agreement.
The California Chamber of Commerce, representing a large
coalition of organizations, writes, "mandating liability between
parties to a contract is a significant interference with the
contractual relationship and their ability to negotiate various
terms. Moreover, AB 1521 mandates liability onto the owner,
despite the potential lack of control over the premises or
knowledge of changes to the property that created the
'construction-related barrier.' This mandate will result in more
litigation for both the tenant and owner regarding who is
responsible when such provisions can already be determined
through provisions in a contract."
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However, because property owners may often be in a greater
position of power than tenants, staff notes that this section of
the bill arguably does not go far enough to protect tenants
given that it allows property owners and commercial tenants to
allocate responsibility through a written agreement.
The author has worked diligently to resolve the concerns of
various stakeholders and this Committee, but as of yet has been
unable to come to a workable solution. Accordingly, the author
has agreed to remove this section of the bill.
Support : Consumer Attorneys of California
Opposition : American Civil Liberties Union of California;
California Building Industry Association; California Business
Property Association; California Chamber of Commerce; California
Citizens Against Law Suit Abuse; California Grocers Association;
Californians for Disability Rights, Inc.; California Restaurant
Association; Civil Justice Association of California; Disability
Rights California; Santa Maria Valley Chamber of Commerce
Visitors and Convention Bureau; Southwest California Legislative
Council; Torrance Area Chamber of Commerce; United African-Asian
Abilities Club
HISTORY
Source : Author
Related Pending Legislation :
AB 52 (Gray, 2015) would provide that the defendant's maximum
liability for statutory damages in a construction-related
accessibility claim against a place of public accommodation is
$1,000 for each offense if the defendant has corrected all
construction-related violations within 180 days of being served
with the complaint. This bill is currently in the Assembly
Judiciary Committee.
AB 54 (Olsen, 2015) would include any amount paid or incurred by
a taxpayer to receive an inspection by a CASp as an eligible
access expenditure for the Personal Income Tax Law and the
Corporation Tax Law which allows a credit to eligible small
businesses for 50 percent of eligible access expenditures. This
bill is currently in the Assembly Revenue and Taxation
Committee.
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AB 1230 (Gomez, 2015) would establish the California Americans
with Disabilities Act Small Business Compliance Finance Act to
provide loans to assist small businesses finance the costs of
projects that alter or retrofit existing small business
facilities to comply with the federal American with Disabilities
Act. This bill is currently in the Assembly Appropriations
Committee.
AB 1342 (Steinorth, 2015) would provide additional revenue to
the California Commission on Disability Access. This bill is
currently in the Assembly Appropriations Committee.
AB 1468 (Baker, 2015) would provide that a public entity's
possession of a close out letter from the State Architect
certifying that the buildings, facilities, and other places meet
the applicable construction-related accessibility standards of
the federal Americans with Disabilities Act, serves as
presumptive evidence of compliance with the federal Americans
with Disabilities Act. This bill is currently in the Assembly
Judiciary Committee.
SB 67 (Galgiani, 2015) would limit recovery against a small
business for construction-related accessibility claims to
injunctive relief and reasonable attorney's fees, and would
allow businesses who have undergone a CASp inspection 120 days
to correct violations in order to qualify for reduced statutory
minimum damages.
SB 251 (Roth, 2015) would provide that a defendant is not liable
for certain violations if fixed within 15 days, as specified,
and would exempt a defendant from liability for minimum
statutory damages with respect to a structure or area inspected
by a certified access specialist for a period of 120 days if
specified conditions are met. This bill is currently in the
Assembly Appropriations Committee.
Prior Legislation :
SB 1186 (Steinberg and Dutton, Chapter 383, Statutes of 2012)
reduced statutory damages and provided litigation protections
for specified defendants who timely correct construction-related
accessibility violations of the Unruh Civil Rights Act. That
bill also banned prelitigation "demands for money" and created
rules for demand letters and complaints in claims involving
AB 1521 (Committee on Judiciary)
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construction-related accessibility violations.
AB 2282 (Berryhill, 2012) would have authorized an aggrieved
person to bring a disability access suit only if: (1) the person
has suffered an injury in fact; (2) the injury in fact was
caused by the violation; and (3) the violation is redressable,
was held under submission in the Senate Appropriations
Committee.
SB 1163 (Walters, 2012) would have established notice
requirements for an aggrieved party to follow before he or she
can bring a disability access suit and give the business owner a
120-day time period to remedy the violation. If the property
owner cures the violation, the aggrieved party cannot receive
any damages or attorney's fees, except for special damages.
This bill failed passage in this Committee.
AB 1878 (Gaines, 2011) which is substantially similar to SB 1163
but applies to "microbusinesses," defined by the bill, failed
passage in the Assembly Judiciary Committee.
SB 783 (Dutton, 2011), which was identical to SB 1163, failed
passage in this Committee.
SB 384 (Evans, Ch. 419, Stats. 2011) clarified that attorneys
who file complaints or send demand letters related to disability
access violations must provide a written notice of legal rights
and obligations whether or not the attorney intends to file an
action in state or federal court.
SB 209 (Corbett & Harman, Ch. 569, Stats. 2009) required a CASp
inspection report, to remain confidential rather than be under
seal and subject to protective order.
SB 1608 (Corbett et al., Ch. 549, Stats. 2008) See Background;
Comment 6.
SB 1766 (McClintock, 2008) See Background.
AB 2533 (Keene, 2008) See Background.
SB 855 (Poochigian, 2005) See Background.
Prior Vote : Not relevant to current version of this bill.
AB 1521 (Committee on Judiciary)
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