BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    SB 1406


                                                                    Page  1





          Date of Hearing:  June 21, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB  
          1406 (Mendoza) - As Amended May 10, 2016


                      PROPOSED CONSENT (Proposed to be Amended)


          SENATE VOTE:  39-0


          SUBJECT:  CONSTRUCTION-RELATED ACCESSIBILITY: EDUCATION ENTITIES


          KEY ISSUE:  IN ORDER TO GATHER INFORMATION ABOUT THE NUMBER OF  
          COMPLAINTS AND prelitigation LETTERS ALLEGing VIOLATIONS OF  
          CONSTRUCTION-RELATED ACCESSIBILITY STANDARDS that are SENT TO  
          EDUCATION ENTITIES, SHOULD ATTORNEYS be required to report  
          information about such COMPLAINTS and LETTERS TO the california  
          commission on disability access?


                                      SYNOPSIS


          Existing law requires an attorney, when serving a letter  
          demanding money or a complaint that alleges the violation of a  
          construction-related accessibility standard by a public  
          accommodation, to submit a copy of the demand letter or  
          complaint to the California Commission on Disability Access  
          (CCDA) and the State Bar, and also to submit information about  








                                                                    SB 1406


                                                                    Page  2





          the demand letter and complaint to the CCDA.  Failure to comply  
          with these requirements subjects the attorney to disciplinary  
          action by the State Bar.  This bill would impose similar  
          requirements on attorneys who serve prelitigation letters or  
          complaints that allege the violation of a construction-related  
          accessibility standard by education entities.  


          The author asserts that there has been a recent increase in  
          prelitigation letters demanding money and civil complaints  
          served on education entities.  It is difficult to know whether  
          this is true because there is no statewide data about the number  
          of these letters and complaints.  The lack of data is likely  
          related to the fact that compliance with construction-related  
          accessibility standards (commonly called "ADA compliance") by  
          public entities, including schools, has not been the subject of  
          either media or Legislative attention.  To the extent that  
          issues and problems with ADA compliance have come to the  
          attention of the public and the Legislature, including the fact  
          that an extremely small number of highly litigious attorneys  
          makes a business practice out of filing complaints and sending  
          demand letters to small businesses, those issues and problems  
          have involved a type of cases covered by Title III of the ADA,  
          which establishes compliance rules for businesses that are open  
          to and serve the public, referred to as "public accommodations."  
           The ADA compliance rules that apply to public entities, on the  
          other hand, are governed by a different title of the ADA:  Title  
          II cases (government services and programs).  Title II cases are  
          the subject of this bill. 


          Because of this lack of statewide data regarding prelitigation  
          letters and complaints filed in Title II cases, it is also  
          impossible to verify whether there has been, in fact, any  
          increase in the numbers of prelitigation letters and complaints  
          against education entities in recent months or past years.  As  
          the author correctly observes: "Currently, accessibility  
          lawsuits filed against community colleges and K-12 institutions  
          are not collected by one entity.  As a result, it is difficult  








                                                                    SB 1406


                                                                    Page  3





          to understand the magnitude of these cases and to understand the  
          common types of violations schools are sued over."  In order to  
          assist policy makers understand the trends of complaints in  
          Title II cases, it makes sense for attorneys who serve  
          prelitigation letters or complaints against education entities  
          to also report the information about those complaints to the  
          CCDA and to report it in a consistent and understandable manner.  
           Given that the CCDA currently collects similar information  
          about construction-related accessibility claims against public  
          accommodations (private businesses that are open to the public),  
          it makes sense for CCDA to also collect information from  
          education entities and to collect and report on it in the same  
          manner.


          The bill uses Section 55.32 of the Civil Code, which imposes  
          specific reporting requirements on attorneys who send demand  
          letters or complaints to business owners regarding violations of  
          construction-related accessibility claims as a model for its  
          provisions.  However, the bill does not include a number of  
          provisions that are in Section 55.32 which seem appropriate to  
          include in this bill.  Also, a number of definitions in the  
          bill, as it is currently in print, should be revised for  
          clarity.  Finally, it is necessary and important to clarify that  
          the definitions and reporting requirements for prelitigation  
          letters and complaints in the bill do not apply to presentations  
          and claims that are made under a different provision of law, the  
          Government Claims Act.  The author proposes to amend the bill to  
          address all of these issues and those amendments are reflected  
          in this analysis.  The bill is sponsored by the Rancho Santiago  
          Community College District and supported by a large number of  
          education entities, as well as the Civil Justice Association of  
          California.  It has no opposition on file.


          SUMMARY:  Requires an attorney, when serving a prelitigation  
          letter or a complaint alleging a construction-related  
          accessibility claim or noncompliance by an education entity to  
          submit a copy of the demand letter and complaint and information  








                                                                    SB 1406


                                                                    Page  4





          to the California Commission on Disability Access.   
          Specifically, this bill:  


          1)Requires an attorney who provides a "prelitigation letter" to  
            an educational entity to do all of the following: (a) Include  
            the attorney's State Bar license number in the demand letter;  
            (b) Within five business days of providing the prelitigation  
            letter, send a copy of the prelitigation letter to the  
            California Commission on Disability Access (CCDA).
          2)Requires an attorney who sends or serves a complaint against  
            an "educational entity" to send a copy of the complaint and  
            submit information about the complaint in a standard format  
            specified by the CCDA to the commission within five business  
            days of sending or serving the complaint.


          3)Requires an attorney who sends or serves a complaint against  
            an "educational entity" to notify the CCDA within five  
            business days of judgment, settlement, or dismissal of the  
            claim or claims alleged in the complaint of the following  
            information in a standard format specified by the commission:


             a)   The date of the judgment, settlement, or dismissal.
             b)   Whether or not the construction-related accessibility  
               violations alleged in the complaint were remedied in whole  
               or in part after the plaintiff filed a complaint.


             c)   If the construction-related accessibility violations  
               alleged in the complaint were not remedied in whole or in  
               part after the plaintiff filed a complaint, whether or not  
               another favorable result was achieved after the plaintiff  
               filed the complaint.


          1)Provides that failure by an attorney to comply with 2) or 3),  
            above, shall constitute cause for discipline of the attorney  








                                                                    SB 1406


                                                                    Page  5





            by the State Bar.
          2)Requires the CCDA to review and report on the demand letters,  
            complaints, and notifications of case outcomes it receives in  
            the same manner as it does for demand letters, complaints, and  
            notifications of case outcomes regarding construction-related  
            accessibility claims against places of public accommodation.


          3)Exempts a qualified legal services project or a qualified  
            support center from the reporting requirements of the bill.


          4)Clarifies that the bill does not apply to claims for money or  
            damages filed pursuant to the Government Claims Act.


          5)Defines relevant terms, including the following:


             a)   "Construction-related accessibility claim" or "claim"  
               means any claim of a violation of any construction-related  
               accessibility standard, as defined by paragraph (6) of  
               subdivision (a) of Section 55.52, with respect to a public  
               building, public facility, or other public place of an  
               education entity.
             b)   "Education entity" means the Regents of the University  
               of California, the Trustees of the California State  
               University and the California State University, the  
               California Community Colleges Office of the Chancellor and  
               the California Community Colleges, a K-12 school district,  
               or any local education agency.


             c)   "Prelitigation letter" means a prelitigation written  
               document that alleges the site is in violation of one or  
               more construction-related accessibility standards, as  
               defined in paragraph (6) of subdivision (a) of Section  
               55.52 and is provided to the education entity whether or  
               not the attorney intends to file a complaint, or eventually  








                                                                    SB 1406


                                                                    Page  6





               files a complaint, in state or federal court.  A  
               prelitigation letter does not include a claim for money or  
               damages against local public entities governed by Division  
               3.6 of Title 1 of the Government Code. 


          EXISTING LAW:   


          1)Prohibits, pursuant to federal law, discrimination on the  
            basis of disability in all services, programs, and activities  
            provided to the public by state and local governments (e.g.  
            public education, employment, transportation, recreation,  
            health care, social services, courts, voting, and town  
            meetings).  (42 U.S. C. 12131.)  
          2)Provides that no person in the State of California shall, on  
            the basis of race, national origin, ethnic group  
            identification, religion, age, sex, sexual orientation, color,  
            genetic information, or disability, be unlawfully denied full  
            and equal access to the benefits of, or be unlawfully  
            subjected to discrimination under, any program or activity  
            that is conducted, operated, or administered by the state or  
            by any state agency, is funded directly by the state, or  
            receives any financial assistance from the state.  (Gov. Code  
            Section 11135.)


          3)Provides the California Commission on Disability Access  
            (CCDA), an independent state agency composed of 19 members,  
            with general responsibility for monitoring disability access  
            compliance in California, and with authority to make  
            recommendations to the Legislature for necessary changes in  
            order to facilitate implementation of state and federal laws  
            on disability access.  (Gov. Code Section 8299 et seq.)


          4)Ensures that individuals with disabilities or medical  
            conditions have the same right as the general public to the  
            full and free use of the streets, highways, sidewalks,  








                                                                    SB 1406


                                                                    Page  7





            walkways, public buildings, medical facilities, including  
            hospitals, clinics, and physicians' offices, public  
            facilities, and other public places and makes a violation of  
            the right of an individual under the Americans with  
            Disabilities Act of 1990 (Public Law 101-336) also constitute  
            a violation of the Disabled Persons Act (DPA).  (Civil Code  
            Section 54.  All further references are to this code unless  
            otherwise stated.)


          5)Makes a violation of the DPA punishable by "up to a maximum of  
            three times the amount of actual damages but in no case less  
            than $1,000, and attorney's fees as may be determined by the  
            court."  (Section 54.3.)


          6)Prohibits such a demand letter alleging the  
            construction-related accessibility claim or noncompliance  
            regarding a public accommodation from including a request or  
            demand for money or an offer or agreement to accept money,  
            unless the claim involves a physical injury or special damages  
            but allows a building owner, tenant, authorized agent or  
            employee, after receiving a duly-provided demand letter, to  
            request a settlement figure or specification of damages and  
            allows an attorney to present a settlement figure or  
            specification of damages in response.  (Section 55.31.)  


          7)Requires, until January 1, 2019, an attorney to submit a copy  
            of any demand letter alleging the construction-related  
            accessibility claim or noncompliance regarding a public  
            accommodation to the State Bar and subjects the attorney to  
            possible disciplinary action for violations of this  
            requirement.  (Section 55.32.)


          8)Requires an attorney to submit a copy of any letter demanding  
            a payment of money and alleging the construction-related  
            accessibility claim or noncompliance regarding a public  








                                                                    SB 1406


                                                                    Page  8





            accommodation to the CCDA, and to submit a copy of a complaint  
            to the CCDA, and subjects the attorney to possible  
            disciplinary action for violations of this requirement.   
            (Section 55.32.)


          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.


          COMMENTS:  The Americans with Disabilities Act (ADA) was signed  
          into law on July 26, 1990, by President George H.W. Bush.  The  
          ADA is one of America's most comprehensive pieces of civil  
          rights legislation that prohibits discrimination and guarantees  
          that people with disabilities have the same opportunities as  
          everyone else to participate in the mainstream of American life  
          -- to enjoy employment opportunities, to purchase goods and  
          services, and to participate in State and local government  
          programs and services.  Modeled after the Civil Rights Act of  
          1964, which prohibits discrimination on the basis of race,  
          color, religion, sex, or national origin - and Section 504 of  
          the Rehabilitation Act of 1973 -- the ADA is an "equal  
          opportunity" law for people with disabilities. 


          Distinction between the ADA's application privately owned  
          "public accommodations" (Title III) and public "services,  
          programs, and activities" (Title II).  The Unruh Civil Rights  
          Act broadly outlaws arbitrary discrimination in public  
          accommodations and includes disability as one among many  
          prohibited bases.  (Section 51, subd. (b).)  As part of the 1992  
          reformation of state disability law, the Legislature amended the  
          Unruh Civil Rights Act to incorporate by reference the ADA,  
          making violations of the ADA per se violations of the Unruh  
          Civil Rights Act.  Title III of the ADA is therefore applicable  
          via the Unruh Civil Rights Act because it applies to businesses  
          and nonprofit service providers that are public accommodations,  
          specifically private entities who own, lease, lease to, or  
          operate facilities such as restaurants, retail stores, hotels,  
          movie theatres, private schools, convention centers, doctors'  








                                                                    SB 1406


                                                                    Page  9





          offices, homeless shelters, transportation depots, zoos, funeral  
          homes, day care centers, and recreation facilities.  The  
          California Legislature's incorporation of Title III of the ADA  
          into the Unruh Civil Rights Act was intended to extend to  
          disabled individuals aggrieved by an ADA violation "the full  
          panoply of Unruh Civil Rights Act remedies."  (Jankey v. Lee  
          (2012) 55 Cal.4th 1038, 1044 [150 Cal.Rptr.3d 191, 290 P.3d  
          187].)  


          As a result of the 1992 amendment of the Unruh Civil Rights Act,  
          a plaintiff who prevails in a construction-related accessibility  
          claim, like all plaintiffs in other civil rights cases, is now  
          entitled to minimum statutory damages of $4,000 per violation  
          (although later amendments were made to Unruh, affecting only  
          disabled plaintiffs in only construction-related disability  
          claims (though minimum statutory damages can be reduced to  
          $1,000 in some cases, such as when a small business has obtained  
          a CASp inspection)).  However, these provisions apply only to  
          "public accommodations," and do not apply to  
          construction-related accessibility claims against government  
          services, programs, and activities.  Claims against government  
          services, programs and activities, or "Title II cases," which  
          are governed by different rules, regulations, and enforcement  
          mechanisms than the Title III cases involving private  
          businesses, are the subject of this bill.


          Title II of the ADA prohibits discrimination on the basis of  
          disability in all services, programs, and activities provided to  
          the public by state and local governments (e.g. public  
          education, employment, transportation, recreation, health care,  
          social services, courts, voting, and town meetings).  (42 U.S.C.  
          12131.)  Regulations promulgated by the U.S. Department of  
          Justice to interpret the ADA provide that facilities that are  
          constructed or altered by, on behalf of, or for the use of a  
          public entity shall be designed, constructed, or altered to be  
          readily accessible to and usable by individuals with  
          disabilities.  (28 C.F.R. 35.151 (a)(1).)  The regulations also  








                                                                    SB 1406


                                                                    Page  10





          provide that full compliance with accessibility standards is not  
          required where an entity can demonstrate that it is structurally  
          impracticable to meet the requirements.  (28 C.F.R. 35.151  
          (a)(2).)  Most significantly for the purposes of compliance with  
          Title II by education entities, according to technical  
          assistance from the U.S. Department of Justice, Title II "may  
          not necessarily mandate physical access to all parts of all  
          facilities.  Provision of services to individuals with  
          disabilities in a different location, for example, is one method  
          of achieving program accessibility."  
          (https://www.ada.gov/taman2.html#II-3.4200.)


          Title II of the ADA is expressly incorporated into state law  
          pursuant to the California Disabled Persons Act (DPA) in Civil  
          Code Section 54, which provides: 


               Individuals with disabilities or medical conditions have  
               the same right as the general public to the full and free  
               use of the streets, highways, sidewalks, walkways, public  
               buildings, medical facilities, including hospitals,  
               clinics, and physicians' offices, public facilities, and  
               other public places. . . . A violation of the right of an  
               individual under the Americans with Disabilities Act of  
               1990 (Public Law 101-336) also constitutes a violation of  
               this section. (Section 54.)


          A violation of the DPA is punishable by "up to a maximum of  
          three times the amount of actual damages but in no case less  
          than $1,000, and attorney's fees as may be determined by the  
          court."  (Section 54.3.)  


          To the extent that issues and problems with ADA compliance have  
          come to the attention of the public and the Legislature,  
          including the fact that an extremely small number of highly  
          litigious attorneys makes a business practice out of filing  








                                                                    SB 1406


                                                                    Page  11





          complaints and sending demand letters to small businesses, those  
          issues and problems have involved Title III of the ADA, which  
          establishes compliance rules for businesses that are open to and  
          serve the public, referred to as "public accommodations."  Those  
          high-profile issues and problems have not involved Title II  
          cases (government services and programs), which are the subject  
          of this bill.


          Author's statement regarding the necessity of the bill.   
          According to the author, this bill is necessary to address a  
          recent rise in the number of lawsuits filed against educational  
          institutions, specifically community colleges.  The author  
          states the following regarding the problem that the bill seeks  
          to address: 


               In recent years, there has been an increase in the number  
               of lawsuits against community colleges citing  
               construction-related accessibility violations.  These types  
               of lawsuits can result in facility modifications and  
               upgrades that are not in alignment with existing facilities  
               transition plans, ignore the availability of funding for  
               repairs, and instead put a strain on a district's general  
               fund, thereby affecting programs and services offered to  
               students.  In addition to the cost associated with the  
               repairs, community colleges have incurred significant costs  
               from the legal fees associated with these lawsuits. 


          Likewise, supporters also state, in letters that are virtually  
          identical to the author's statement, that there has been an  
          increase in lawsuits against community colleges.  It is  
          noteworthy that the author and supporters do not say that the  
          lawsuits are frivolous or without merit.  Instead, to the extent  
          that "facility modifications and upgrades" are necessary to  
          comply with construction-related accessibility standards  in  
          existing law, the author and supporters state that those  
          improvements "are not in alignment with existing facilities  








                                                                    SB 1406


                                                                    Page  12





          transition plans, ignore the availability of funding for  
          repairs, and instead put a strain on a district's general fund."  
           Basically, community colleges have longer term plans to correct  
          violations of construction-related accessibility standards and  
          it is not convenient or financially wise to do so in response to  
          a lawsuit.  While this may be true, it ignores the reality that  
          persons with limited disability have the right of full and equal  
          access to all public buildings, including schools and community  
          colleges, under existing law.  They should not have to wait for  
          a school or community college to correct violations of  
          construction-related accessibility standards until it is optimal  
          from the college's perspective to do so in order to exercise  
                                                                     their rights.


          Furthermore, it is difficult to confirm or deny the author's  
          (and supporters) claims about an increase in the number of  
          lawsuits against education entities because no statewide data  
          appears to be available about the number of complaints filed in  
          the state.  Because of this lack of statewide data, it is also  
          impossible to verify whether there is, in fact, any trend of  
          more complaints being filed against education entities in recent  
          months or past years.  As the author correctly observes:


               Currently, accessibility lawsuits filed against community  
               colleges and K-12 institutions are not collected by one  
               entity. As a result, it is difficult to understand the  
               magnitude of these cases and to understand the common types  
               of violations schools are sued over.  




          In order to assist policy makers, it makes sense for attorneys  
          who serve prelitigation letters or complaints against education  
          entities to also report the information in a consistent and  
          understandable manner.  Given that the California Commission on  
          Disability Access (CCDA) currently collects similar information  








                                                                    SB 1406


                                                                    Page  13





          about construction-related accessibility claims against public  
          accommodations (private businesses that are open to the public),  
          it makes sense for CCDA to also collect information for  
          education entities. 


          This bill furthers recent legislative efforts to collect more  
          information about ADA claims and to collect the information in a  
          more efficient manner.  Last year the Legislature approved and  
          the Governor signed into law AB 1521, authored by this  
          Committee, which, among other things, requires attorneys in  
          disability access cases to notify the Commission, within five  
          business days of any judgment, settlement, or dismissal of the  
          claim or claims alleged in the complaint, of certain information  
          in a standard format specified by the Commission.  Specifically,  
          the information required to be reported to the Commission  
          includes: (1) the date of the judgment, settlement, or  
          dismissal; (2) whether or not the construction-related  
          accessibility violations alleged in the complaint were remedied  
          in whole or in part after the plaintiff filed a complaint or  
          provided a demand letter; (3) if the construction-related  
          accessibility violations alleged in the complaint were not  
          remedied in whole or in part after the plaintiff filed a  
          complaint or provided a demand letter, whether or not another  
          favorable result was achieved after the plaintiff filed the  
          complaint or provided the demand letter; and (4) whether or not  
          the defendant submitted an application for an early evaluation  
          conference and stay pursuant to Civil Code Section 55.54,  
          whether the defendant requested a site inspection, the date of  
          any early evaluation conference, and the date of any site  
          inspection.  (See Civil Code Section 55.32 (b)(2).)


          Existing law also requires an attorney who provides a demand  
          letter or who sends or serves a complaint in a  
          construction-related accessibility case to send a copy of the  
          demand letter or complaint to the Commission within five  
          business days.  (Existing law also requires a copy of the demand  
          letter to be sent to the State Bar, but only until January 1,  








                                                                    SB 1406


                                                                    Page  14





          2019.)  This bill would require attorneys who submit  
          pre-litigation letters and complaints alleging  
          construction-related accessibility violations by education  
          entities to submit information about those letters or complaints  
          to the Commission in a standard format specified by the  
          Commission, so that data about accessibility claims can be more  
          effectively compiled by the Commission and provided to the  
          Legislature.  


          Author's amendments to conform this bill more closely to the  
          section of existing law on which it is modeled and make a number  
          of important clarifications.  The bill uses Section 55.32 of the  
          Civil Code, which imposes certain requirements on attorneys who  
          send demand letters or complaints to business owners regarding  
          violations of construction-related accessibility claims in  
          "public accommodations," as a model for its requirements.   
          However, the bill does not include a number of provisions that  
          are in Section 55.32--including the requirement for the attorney  
          to include his or her State Bar license number in any  
          prelitigation letter; a penalty for violating the requirements  
          of the bill constitutes cause for the imposition of discipline  
          of an attorney; clarification that duplicate letters or  
          complaints do not have to be sent to CCDA and that the  
          requirements of the bill do not apply to legal services  
          attorneys; and a requirement for CCDA to  review and report on  
          the prelitigation letters, complaints, and notifications of case  
          outcomes it receives in the same manner that it does for demand  
          letters and complaints regarding public accommodations-in its  
          provisions.


          Also, a number of definitions in the bill, as it is currently in  
          print, would appropriately be revised.  For example, the bill in  
          print uses the term "public entity" even though it only applies  
          to educational institutions and the term "public entity" is  
          widely used to refer to entities other than schools.  The term  
          "demand letter" used in the bill as in print is defined  
          elsewhere in the Civil Code to apply to letters sent to public  








                                                                    SB 1406


                                                                    Page  15





          accommodations.  To clarify the meaning of these terms, the  
          terms are given new names and revised definitions.  


          Finally, it is necessary and important to clarify that the  
          definitions and reporting requirements for prelitigation letters  
          and complaints in the bill do not apply to presentations and  
          claims made under the Government Claims Act (Government Code  
          Section 900 et seq.), which requires the claimant to submit (or  
          "present") a claim, asking for money damages, to a government  
          entity prior to filing a civil suit.  (Gov. Code Section 905.)   
          The bill is not intended to apply to such cases.  The author  
          reasonably proposes to amend the bill to address all of the  
          above issues.


          PENDING SIMILAR LEGISLATION.  AB 54 (Olsen) requires demand  
          letters and information about complaints to be submitted to the  
          Commission on Disability Access in a standard format specified  
          by the Commission.  This bill is currently in the Senate  
          Appropriations Committee.  


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Rancho Santiago Community College District (sponsor)


          Civil Justice Association of California 


          Coast Community College District









                                                                    SB 1406


                                                                    Page  16






          Community College League of California


          Foothill-De Anza Community College District


          Kings Canyon Unified School District


          Los Rios Community College District


          Orange County Community College Legislative Task Force


          Riverside Community College District


          San Diego Community College District


          San Joaquin Delta College


          San Mateo Community College District


          South Orange Community College District




          Opposition


          None on file










                                                                    SB 1406


                                                                    Page  17







          Analysis Prepared by:Alison Merrilees / JUD. / (916)  
          319-2334