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: 9/4/15 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.
Senate Floor Amendments of 9/4/15 update the bill language to
reflect data reporting requirements added to the bill on
September 3, 2015.
ANALYSIS:
Existing law:
AB 1521
Page 2
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
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) 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.)
4) 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.)
5) 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 Certified
Access Specialist 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).)
AB 1521
Page 3
6) 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).)
7) 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)
This bill:
1) Requires 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.
1) 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 specified information.
2) 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
AB 1521
Page 4
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.
1) 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.
2) 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.
3) Defines 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
AB 1521
Page 5
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 excluding the following:
An action in which an early evaluation conference
was held pursuant to section 55.54.
An action in which judgment was entered in favor
of the plaintiff.
An action in which the construction-related
accessibility violations alleged in the complaint were
remedied in whole or in part, or a favorable result was
achieved, after the plaintiff filed a complaint or
provided a demand letter, as defined by section 55.3 of
the Civil Code.
1) 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.
1) 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 California Commission on Disability
Access (Commission).
2) Requires an attorney who serves a complaint to notify the
Commission within five days of judgment, settlement, or
AB 1521
Page 6
dismissal of specified information including the following:
Whether or not the violations were remedied, as
specified;
Whether the plaintiff achieved a favorable result; and
Whether the defendant submitted an application for an
early evaluation conference and stay or site inspection,
and the date of the site inspection.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
Minor one-time absorbable costs (General Fund*) for the
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: (Verified9/8/15)
AB 1521
Page 7
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
California Grocers Association
Civil Justice Association of California
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
OPPOSITION: (Verified9/8/15)
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
AB 1521
Page 8
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 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: The United African-Asian Abilities
Club (UAAAC) writes:
AB 1521 does not contain a purpose. However, by reading the
bill as a whole, UAAAC has determined that the purpose is to
stop ADA lawsuits. ... However, as noted below, the ADA
lawsuits will continue because the California legislature only
has the power to reduce or to eliminate statutory damages but
it does not have the power to stop the lawyers from filing ADA
lawsuits.
Prepared by:Nichole Rapier / JUD. / (916) 651-4113
9/8/15 21:59:25
**** END ****