BILL ANALYSIS                                                                                                                                                                                                    





                             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  







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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.








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