BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 1521|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
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                                   THIRD READING 


          Bill No:  AB 1521
          Author:   Committee on Judiciary  
          Amended:  8/17/15 in Senate
          Vote:     27 - Urgency

           SENATE JUDICIARY COMMITTEE:  5-1, 8/25/15
           AYES:  Jackson, Hertzberg, Leno, Monning, Wieckowski
           NOES:  Anderson
           NO VOTE RECORDED:  Moorlach

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 8/27/15
           AYES:  Lara, Beall, Hill, Leyva, Mendoza
           NOES:  Bates, Nielsen

           ASSEMBLY FLOOR:  Not relevant

           SUBJECT:   Disability access:  construction-related  
                     accessibility claims


          SOURCE:    Author

          DIGEST:   This bill makes various changes to the law as it  
          pertains to construction-related accessibility claims.

          ANALYSIS: 
          
          Existing law: 

           1) Provides, under the federal Americans with Disabilities Act  
             (ADA), 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  








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             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.)

           2) Declares, under the Unruh Civil Rights Act, 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.)  

           3) Requires that an attorney who provides a demand letter must  
             do the following: 

              a)    Include the attorney's State Bar license number in the  
                demand letter; and

              b)    Provide a copy of the demand letter to the State Bar  
                and the California Commission on Disability Access  
                (Commission). (Civ. Code Sec. 55.32(a) and (b), repealed  
                January 1, 2016.)  

           4) 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.)

           5) 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.)

           6) Reduces a defendant's minimum liability for statutory  
             damages in a construction-related accessibility claim against  







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             a place of public accommodation to $1,000 for each  
             unintentional offense if the defendant has had a Certified  
             Access Specialist (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).)

           7) 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).)

           8) 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)

           9) 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: 

              a)    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; 

              b)    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 

              c)    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  







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                of being served the complaint.  (Civ. Code Sec. 55.54.)  

          This bill:

           1) Requires that any complaint filed by a high frequency  
             litigant state the following: 

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

              b)    The number of complaints alleging a  
                construction-related accessibility claim that the  
                high-frequency litigant has filed during the past 12  
                months, as specified; 

              c)    The reason the individual was in the geographic area  
                of the defendant's business, as specified; and

              d)    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.

           2) Requires that any complaint alleging a construction-related  
             accessibility violation be signed by the attorney of record,  
             or party if the plaintiff is representing himself, and that  
             the signature certifies the following: 

              a)    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;

              b)    The claims, defenses, and other legal contentions  
                therein are warranted by existing law;

              c)    The allegations and other factual contentions have  
                evidentiary support, as specified; and

              d)    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.

           3) States that a court may, after notice and a reasonable  
             opportunity to respond, impose sanctions on an attorney for  







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             violation of the above requirements. 

           4) Revises 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.  

           5) Requires 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: 

              a)    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;

              b)    Space for potential affirmative defenses available to  
                the defendant, including an assertion that the defendant's  
                landlord is responsible; 

              c)    Any request to meet in person at the subject premises;

              d)    Whether the defendant qualifies for reduced damages;  
                and

              e)    Instructions to a defendant who wishes to file the  
                form as an answer to the complaint. 

           6) Allows 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.

           7) Requires 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 authorizes 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.  

           8) Defines a high frequency litigant as:







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              a)    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

              b)    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.

           9) Makes various findings and declarations including: 

              a)    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;

              b)    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

              c)    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.

           10)Requires a high frequency litigant to pay $1,000, 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 Commission. 

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes

          According to the Senate Appropriations Committee:

           Minor one-time absorbable costs (General Fund*) for the  







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            Judicial Council to update and develop the specified forms.

           Potential increase in revenues to the Trial Court Trust Fund  
            and General Fund from the additional $1,000 filing fee on  
            high-frequency litigants, as defined. To the extent the  
            assessment of the additional fee serves to discourage the  
            filing of construction-related accessibility claims that  
            otherwise would have been filed, could result in some degree  
            of workload relief to the trial courts.

           Potential increase in the Proposition 98 minimum funding  
            guarantee, potentially in excess of $50,000 (General Fund)  
            annually should a specified portion of revenues from the  
            high-frequency litigant fee be considered General Fund  
            proceeds of taxes for purposes of calculating the minimum  
            school funding obligation. 

           Unknown, potential future litigation costs (General Fund) to  
            the extent imposing new requirements on one class of plaintiff  
            (disabled litigants), due to the volume of cases filed,  
            without regard to the legitimacy of the allegations or merits  
            of each case, should be challenged in court. 

          *Trial Court Trust Fund


          SUPPORT:   (Verified8/28/15)


          Association of Commercial Real Estate - Northern and Southern  
          California
          Building Owners and Managers Association of California 
          California Association for Local Economic Development 
          California Business Property Association
          California Downtown Association 
          Consumer Attorneys of California 
          Institute of Real Estate Management 
          International Council of Shopping Centers 
          NAIOP of California, the Commercial Real Estate Developers  
          Association 
          Retail Industry Leaders Association 
          National Association of Real Estate Investment Trusts 









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          OPPOSITION:   (Verified8/28/15)


          American Civil Liberties Union of California
          California Building Industry Association
          California Chamber of Commerce
          California Citizens Against Law Suit Abuse
          Californians for Disability Rights, Inc. 
          California Restaurant Association
          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


          ARGUMENTS IN SUPPORT:     The author writes: 


            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  
            construction-related accessibility lawsuits filed in this  
            state are filed by a very small number of plaintiffs and their  
            attorneys.









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            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.  


          ARGUMENTS IN OPPOSITION: Disability Rights California (DRC), in  
          opposition, argues that designating attorneys who specialize in  
          construction-related accessibility litigation as high frequency  
          litigations, will restrict a valuable resource that the  
          disability community relies on when enforcing access laws. DRC  
          writes:                                                     


            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.

          ASSEMBLY FLOOR:  76-0, 5/28/15
          AYES:  Alejo, Travis Allen, Baker, Bigelow, Bonilla, Bonta,  
            Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez,  
            Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd,  
            Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia,  
            Eduardo Garcia, Gatto, Gipson, Gonzalez, Gordon, Gray, Hadley,  
            Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer,  
            Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis,  
            Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte,  
            O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon,  
            Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark  







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            Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams,  
            Wood, Atkins
          NO VOTE RECORDED:  Achadjian, Bloom, Gomez, Grove

          Prepared by:Nichole Rapier / JUD. / (916) 651-4113
          8/31/15 11:43:37


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