BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 209 S
Senators Corbett & Harman B
As Introduced
Hearing Date: March 31, 2009 2
Civil Code 0
GMO:jd 9
SUBJECT
Civil Actions: Access by Persons with Disabilities
DESCRIPTION
This bill would require a Certified Access Specialist (CASp)
inspection report, submitted to the court in an action involving
alleged violations of disability access laws to trigger an early
evaluation conference, to remain confidential rather than be
under seal and subject to protective orders of the court. The
bill would specify who would have access to the CASp report and
when confidentiality of the report would terminate.
BACKGROUND
In 2008, landmark legislation was enacted to increase
enforcement of disability access laws while providing a measure
of relief to businesses that are in compliance or that attempt
to comply with federal and state disability access laws. (SB
1608, Corbett et al., Ch. 549, Stats. 2008.) SB 1608 created
the California Commission on Disability Access, required all
inspections relating to permitting, plan checks, or new
construction in privately owned buildings to be conducted by a
building inspector who is a Certified Access Specialist (CASp),
and established a procedure for a business sued for violations
of construction-related disability access requirements to
request a court-ordered stay and early evaluation conference
(EEC) to resolve the complaint (if possible), if the business
had been inspected by a CASp.
SB 209 is a follow-up bill to address some issues, raised by the
Judicial Council and the California Newspaper Publishers
(more)
SB 209 (Corbett & Harman)
Page 2 of ?
Association about the sealing of a CASp report filed with the
court by a qualified defendant, that were too late for inclusion
in the final version of the bill. These issues were identified
in a Letter to the Journal dated August 14, 2008, signed by all
authors and co-authors of SB 1608 and submitted to both the
Senate and the Assembly.
CHANGES TO EXISTING LAW
1. Existing law requires a court, in an action involving a
construction-related accessibility claim, to issue an order
granting a 90-day stay of the proceedings and scheduling an
early evaluation conference, pursuant to a request by a
defendant who claims that the premises alleged in the
complaint to have been non-compliant with disability access
laws had been inspected by a Certified Access Specialist
(CASp). (Civil Code Sec. 55.54.)
Existing law requires the court's order pursuant to Sec. 55.54
to direct the defendant to file with the court under seal and
to serve on all parties a copy of the CASp report at least
fifteen (15) days before the date set for the early evaluation
conference. Existing law makes the submitted CASp report
subject to a protective court order maintaining the
confidentiality of the report. (Civil Code Sec. 55.54(c).)
This bill would make the CASp report confidential instead of
"under seal."
This bill would specify that the CASp report is available only
to the court, the parties to the action, the parties'
attorneys, those individuals employed or retained by the
attorneys to assist in the litigation, and insurance
representatives or others necessary to the settlement of the
case, unless access is granted by the court upon a showing of
good cause by any party.
2. Existing law provides that the court may lift the seal and
protective order on a CASp inspection report at the conclusion
of the stay or at a later time upon a showing of good cause by
any party, and that the seal and protective order terminates
upon conclusion of the claim. (Civil Code Sec. 55.54(e)(4).)
This bill would instead provide that a CASp inspection report
filed with the court shall remain confidential throughout the
SB 209 (Corbett & Harman)
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stay and for the duration of the litigation until the
conclusion of the claim, unless there is a showing of good
cause by any party, and shall terminate upon conclusion of
the claim unless the owner of the report obtains a court order
sealing the report.
COMMENT
1. Stated need for the bill
SB 209 intends to make the stay and early evaluation conference
available to defendants in construction-related accessibility
litigation less cumbersome for the courts to implement. During
the final weeks of the last legislative session, the Judicial
Council and the California Newspaper Publishers Association
addressed the burdens and benefits of keeping records under
seal, and agreed that making the records confidential instead
would serve the purposes and goals of SB 1608. The authors
agreed, but due to the lateness of the session, the authors were
unable to amend the bill. Thus, a Letter to the Journal was
submitted. SB 209 results from the commitment made by the
authors to address those concerns.
2. Keeping CASp inspection reports confidential instead of
under seal
Under SB 1608, a business that is sued for violations of
disability access laws may request a stay of the proceedings and
an early evaluation conference (EEC) where the lawsuit may be
settled, if the business had been inspected by a certified
access specialist (CASp). The CASp report must be submitted to
the court no later than fifteen days prior to the date set for
the EEC. The CASp report is filed under seal and subject to a
protective order maintaining confidentiality of the report until
the conclusion of the claim, unless a showing of good cause is
made to the court to order the record unsealed.
Sealing specified records in any proceeding involves the court
reviewing those records, extracting them from the
publicly-accessible file, and keeping those records separate in
a sealed and marked envelope. To unseal any sealed record, it
generally requires a formal application to the court, perhaps a
hearing if there is opposition, and another review by the court
to determine whether the record should be unsealed or not.
Although this process may be a little more onerous than the
simple maintenance of a "confidential" portion of a court file,
SB 209 (Corbett & Harman)
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the real burden of the sealing/unsealing process is on a person
who wishes to access the sealed record. If this person is not a
party to the litigation (such as a potential plaintiff who wants
to know what the CASp reported vis-?-vis the defendant business
entity, or a neighboring business in the same building who wants
to know what improvements the CASp-inspected business premises
has to make to its premises, or a newspaper reporter who wants
to write about ADA-compliant or non-ADA compliant businesses),
it is highly unlikely that he or she can get a record unsealed.
In other words, the burden is high, once a record is sealed, to
unseal the record. This is why, in certain instances, a sealed
record is automatically unsealed at a given point of reference
(such as after so many years, or when a juvenile turns 18).
Based on concerns raised by those who want to minimize the
practice of sealing records and the burden such a process
imposes on the courts, SB 209 would instead make the CASp report
confidential. Thus, the CASp report would simply be kept in a
file folder separate from the publicly-accessible portion of the
court's file, still accessible but only to those specified under
SB 209.
3. CASp report available to litigants and involved parties,
and to others only upon showing of good cause
Although the CASp inspection report would become confidential
(rather than sealed), SB 209 would allow disclosure of the CASp
inspection report to the court, parties to the action, the
parties' attorneys, and others necessary to the settlement of
the case.
The report would remain confidential throughout the stay and for
the duration of the litigation, until the conclusion of the
claim, whether by dismissal, settlement, or final judgment on
the action. However, it may be disclosed to any party upon
petition and a showing of good cause. Further, under this bill,
the confidentiality of the CASp report would terminate upon the
conclusion of the claim, making the CASp report available to any
member of the public, unless the owner of the report obtains a
court order pursuant to the California Rules of Court to seal
the report.
Support : Judicial Council of California; American Federation of
State, County and Municipal Employees (AFSCME), AFL-CIO
SB 209 (Corbett & Harman)
Page 5 of ?
Opposition : None Known
HISTORY
Source : Authors
Related Pending Legislation : None Known
Prior Legislation : SB 1608 (Corbett et al., Ch. 549, Stats.
2008). (See Background.)
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