Amended in Assembly April 1, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1885

Introduced by Assembly Member Bigelow

February 19, 2014

An act to begin insert add Sections 55.4 and 55.41 to the Civil Code, and to end insert amend Section 4452 of the Government Code, relating to begin delete public buildings. end delete begin insert special access end insert begin insert . end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 1885, as amended, Bigelow. begin delete Public buildings: end delete begin insert Special end insert access: disabled begin delete persons. end delete begin insert persons: liability. end insert

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Under existing law, a person, firm, or corporation that interferes with the access rights of a disabled individual is liable for the actual damages of each offense and any amount determined by a judge or jury of up to 3 times the amount of the actual damages, but in no case less than $1,000. Existing law requires the State Architect to develop and submit for approval and adoption building standards for making buildings, structures, sidewalks, curbs, and related facilities accessible to, and usable by, persons with disabilities, as specified.

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This bill would establish notice requirements for an alleged aggrieved party to follow before bringing an action against a business for an alleged violation of the above-described provisions. The bill would require that party to provide specified notice to the owner of the property, agent, or other responsible party where the alleged violation occurred. The bill would require that owner, agent, or other responsible party to respond within 30 days with a description of the improvements to be made or with a rebuttal to the allegations, as specified. If that owner, agent, or other responsible party elects to fix the alleged violation, the bill would provide 90 days to do so. The bill would provide that its provisions do not apply to claims for recovery of special damages for an injury in fact, and would authorize the court to consider previous or pending actual damage awards received or prayed for by the alleged aggrieved party for the same or similar injury. The bill would further state the intent of the Legislature to institute certain educational programs related to special access laws.

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Existing law declares the intent of the Legislature that state building standards relating to access to public buildings by the physically handicapped and other specified regulations adopted by the State Architect be used as minimum requirements of accessibility and functionality for the physically handicapped, without loss of function, space, or facility for the general public.

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This bill would make technical, nonsubstantive changes to that provision.

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Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert begin insert

The Legislature finds and declares all of the
following:

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(a) The federal Americans with Disabilities Act of 1990 (Public
Law 101-336) and this state’s complementary special access laws
set forth in Sections 51, 52, 54, 54.1, and 54.3 of the Civil Code
and Sections 4450 and 4452 of the Government Code are intended
to protect Californians with special needs from unlawful and unfair
restrictions on access 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.

end insert begin insert

(b) These special access laws are susceptible to abuse through
vexatious litigation that is not pursued with the primary intent of
rectifying a wrong or advancing or creating a public benefit.

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(c) Vexatious special access lawsuits unduly burden our courts
and taxpayers and do not result in improved access for those with
special access needs. Those lawsuits cost California jobs and
economic prosperity, unfairly threaten small businesses, force
businesses to respond with higher costs for goods and services,
and have adverse impacts on levels of employment and employee
compensation.

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(d) It is the intent of the Legislature in enacting this act to
eliminate vexatious special access lawsuits while protecting the
right of individuals to retain counsel and file an action for relief
pursuant to the federal Americans with Disabilities Act of 1990
(Public Law 101-336) and Sections 51, 52, 54, 54.1, and 54.3 of
the Civil Code and Sections 4450 and 4452 of the Government
Code.

end insert begin insert

(e) It is the intent of the Legislature in enacting this act to
restrict the filing of special access lawsuits under California law
without first notifying and allowing property owners, agents, or
other responsible parties the opportunity to improve access by
curing any violations.

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(f) It is not the intent of the Legislature in enacting this act to
prohibit the filing of special access lawsuits where, because of an
alleged violation of this state’s special access laws, an individual
has suffered an injury in fact for which a proceeding in a court of
competent jurisdiction is proper.

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begin insert

begin insert SEC. 2. end insert   

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begin insert Section 55.4 is added to the end insert begin insert Civil Code end insert begin insert , to read: end insert

begin insert

begin insert 55.4. end insert   

(a) Notwithstanding any other provision of law, prior to
filing a claim under Section 51, 52, 54, 54.1, or 54.3 of this code,
or Section 4450 or 4452 of the Government Code, the alleged
aggrieved party shall notify the owner of the property, agent, or
other responsible party where the alleged violation occurred by
personal service, in accordance with applicable state or federal
laws, or certified mail, of all alleged special access violations for
which a claim may be filed by the alleged aggrieved party. That
notice shall contain the following language:

“This letter is to inform you that the property located at (address
of property), for which you are the property owner, agent, or other
responsible party, may be in violation of federal and/or state
special access laws pursuant to (expressly cite the federal and/or
California statute of which the property is believed to be in
violation) and caused harm to (list the name of the alleged
aggrieved party).

Specifically, the possible violation(s) has/have been identified
as follows: (Notice must identify the specific facts that constitute
the alleged violation, including the date on which the alleged
violation occurred and identification of the location of the alleged
violation with sufficient detail, so that the location can be identified
by the property owner, agent, or other responsible party).

Under Section 55.4 of the California Civil Code, you have 30
days to respond to this notice by certified mail or personal service.
Your response must be addressed to (give address where personal
service may be received or certified mail may be sent). California
law allows you to respond in one of three ways:

(1) You may expressly state that improvements will be made to
bring the premises into compliance with applicable special access
laws. If you respond in this fashion, you have a maximum of 90
days to make these improvements or repairs. The 90-day period
shall begin on the date your response to this notice is received at
the address given above. If the improvements or repairs necessary
to bring the property into compliance with federal and state special
access laws are not completed in 90 days, a lawsuit may be brought
against you.

(2) You may challenge the validity of the alleged violations. If
you respond in this fashion, a lawsuit may be brought against you
immediately.

(3) If the violations listed above are the same or similar to
previous violations that you believe have been corrected, you may
respond by stating that the necessary repairs have been made to
bring the property into compliance with federal and state special
access laws. You must also attach evidence that verifies those
improvements.

If you have any questions about this notice or your rights under
federal or California law, please contact your legal counsel.”

(b) Beginning with the date of notice, the property owner, agent,
or other responsible party where the alleged violation occurred
shall have 30 days to respond by certified mail or personal service
to the alleged aggrieved party. That response shall communicate
any of the following:

(1) Expressly state that improvements will be made to bring the
premises into compliance with applicable laws. A response in this
fashion by the property owner, agent, or other responsible party
where the alleged violation occurred shall not be considered an
admission of guilt and is inadmissible in any future claims based
on the same facts filed against the property owner, agent, or other
responsible party.

(2) Challenge the validity of the alleged violation. If the property
owner, agent, or other responsible party where the alleged
violation occurred so responds, the alleged aggrieved party may
file a claim, subject to any applicable statutes of limitations, any
time after receipt of notice as prescribed in this section.

(3) State that the alleged violations identified by the alleged
aggrieved party have been corrected to comply with applicable
state and federal special access laws. The property owner, agent,
or other responsible party where the alleged violation occurred
shall also attach evidence that verifies those improvements.

(c) If the property owner, agent, or responsible party where the
alleged violation occurred responds in the manner described in
paragraph (1) of subdivision (b), the property owner, agent, or
responsible party where the alleged violation occurred shall have
90 days to remedy the alleged violation. The 90-day period shall
begin on the date the alleged aggrieved party receives a response,
pursuant to subdivision (b), from the owner, agent, or responsible
party where the alleged violation occurred.

(d) If, at the end of the 90-day period, the property owner, agent,
or responsible party where the alleged violation occurred has not
made the improvements described in paragraph (1) of subdivision
(b) and fails to provide satisfactory explanation as to why those
repairs were not yet completed, the alleged aggrieved party may
file a claim.

(e) If the property owner, agent, or other responsible party
where the alleged violation occurred has made the improvements
described in paragraph (1) of subdivision (b), no current or future
alleged aggrieved party shall receive any damages or attorney’s
fees, other than special damages, for any claim arising out of the
same or similar facts that served as a basis for the alleged
violation.

(f) This section applies to all claims for damages or fees, other
than those praying for special damages arising out of injuries in
fact. This section shall not be construed to limit claims for recovery
of special damages filed by any person who suffers an injury in
fact because they were denied full and equal access to an
accommodation as required by Section 51, 52, 54, 54.1, or 54.3
of this code, or Section 4450 or 4452 of the Government Code.

(g) In making a determination of the amount of damages
awarded to a successful plaintiff, a court or jury shall consider
previous or pending actual damage awards received or prayed
for by that plaintiff for the same or similar injury.

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begin insert SEC. 3. end insert   

end insert

begin insert Section 55.41 is added to the end insert begin insert Civil Code end insert begin insert , to read: end insert

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begin insert 55.41. end insert   

It is the intent of the Legislature to institute programs
to educate business property owners and local municipalities about
the accessibility requirements of federal and state special access
laws.

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begin delete SECTION 1. end delete
begin insert SEC. 4. end insert   

Section 4452 of the Government Code is amended to
read:

4452.  

begin insert (a) end insert begin insert   end insert It is the intent of the Legislature that the building
standards published in the State Building Standards Code relating
to access by physically handicapped persons and the other
regulations adopted by the State Architect pursuant to Section
4450 shall be used as minimum requirements to ensure that
buildings, structures, and related facilities covered by this chapter
are accessible to, and functional for, physically handicapped
persons to, through, and within their doors, without loss of function,
space, or facility where the general public is concerned.

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Any

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begin insert (b) end insert begin insert   end insert begin insert Any end insert unauthorized deviation from those regulations or
building standards shall be rectified by full compliance within 90
days after discovery of the deviation.

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(c) Notwithstanding subdivision (b), prior to any action
commenced for an alleged violation of Section 4450 or this section,
the notice requirements specified in Section 55.4 of the Civil Code
shall apply to the alleged aggrieved party.

end insert