BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1521| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 AB 1521 Page 2 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 Code Sec. 55.32(a) and (b), repealed January 1, 2016.) 4) Provides that statutory damages may be recovered in a construction-related accessibility claim only if a violation or violations of one or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 AB 1521 Page 3 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 AB 1521 Page 4 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 AB 1521 Page 5 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: AB 1521 Page 6 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 AB 1521 Page 7 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 AB 1521 Page 8 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. AB 1521 Page 9 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 AB 1521 Page 10 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 **** END ****