BILL NUMBER: AB 1521 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 2, 2015
AMENDED IN ASSEMBLY MAY 21, 2015
AMENDED IN ASSEMBLY MAY 6, 2015
INTRODUCED BY Committee on Judiciary (Assembly Members Mark Stone
(Chair), Alejo, Chau, Chiu, Cristina Garcia, and Holden)
MARCH 10, 2015
An act to amend Section 55.3 of Sections
55, 55.3, and 55.54 of, and to add Section 54.35, the Civil
Code, to amend Section 425.50 of, and to add Sections 425.55
and 425.60 to, the Code of Civil Procedure, to amend
Section 19953 of the Health and Safety Code, relating to
disability access.
LEGISLATIVE COUNSEL'S DIGEST
AB 1521, as amended, Committee on Judiciary. Disability access:
construction-related accessibility claims.
Existing law provides 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, walkways,
public buildings, medical facilities, public facilities, and other
public places, and allows a person who is aggrieved or potentially
aggrieved by a violation of specific provisions of law to bring an
action to enjoin the violation. Existing law requires an attorney to
provide a written advisory with each demand letter or complaint, as
defined, sent to or served upon a defendant or potential defendant
for any construction-related accessibility claim, as specified.
This bill would require the above-described advisory to include
additional information regarding the rights and obligations of
business owners and commercial tenants, as specified. In addition to
the written advisory, the bill would require an attorney to provide a
defendant or potential defendant of a construction-related
accessibility claim with an answer form developed by the Judicial
Council, which would allow a defendant to respond in the event a
complaint is filed, as specified. The bill would, on or before July
1, 2016, require the Judicial Council to update the advisory form and
adopt the answer form, as specified.
Existing law authorizes commencement of an action for damages
against persons who interfere with these access rights, including,
but not limited to, actions against owners and tenants of property
for construction-related barriers.
This bill would, with certain exceptions, require the owner of
property to which the general public is invited to indemnify a
microbusiness tenant, as defined, from liability arising from any
construction-related accessibility claims, as specified.
This bill would require that the attorney, or the party in cases
where the party is not represented by counsel, certify that specified
conditions have been met, including, but not limited to, that the
action is not being presented primarily for an improper purpose, such
as to harass or to cause unnecessary delay. By expanding the
definition of the crime of perjury, this bill would impose a
state-mandated local program.
Existing law entitles the prevailing party to recover reasonable
attorney's fees.
This bill would, instead, require the court to award costs and
reasonable attorney's fees to a prevailing plaintiff, and to award
court costs and reasonable attorney's fees to the defendant if the
court finds that the plaintiff's case is clearly frivolous.
This bill would, with certain exceptions, require a person who is
represented by an attorney and has filed more than 15 lawsuits that
allege construction-related accessibility violations against places
of public accommodation within the prior 12 month-period, to seek and
obtain approval of the court with respect to settlement of the case.
Existing law authorizes a defendant to file a request for a court
stay and an early evaluation conference in the proceedings under
certain circumstances, and tolls the period for responsive pleadings.
This bill would specify that these provisions also apply if a
defendant is a business that has been served with a complaint filed
by a high-frequency litigant, as defined, or is a business requesting
an early evaluation conference.
Existing law, upon the filing of an application for a court stay
and an early evaluation conference by a defendant, requires the court
to immediately issue an order that does certain things, including,
but not limited to, scheduling a mandatory early evaluation
conference for a date as soon as possible from the date of the order,
but in no event later than 70 days after the issuance of the order.
This bill would, if requested by the defendant, require the court
order to direct the parties and their counsel to meet at the
premises, or other place as specified, no later than 30 days after
issuance of the court order, to jointly inspect the premises, and
review any programmatic or policy issues, that are claimed to
constitute a violation of a construction-related accessibility
standard.
Existing law requires that an allegation of a construction-related
accessibility claim in a complaint state facts sufficient to allow a
reasonable person to identify the basis of the violation, including,
but not limited to, a plain language explanation of the specific
access barrier or barriers the individual encountered, or by which
the individual alleges he or she was deterred.
This bill would, for cases filed by or on behalf of a
high-frequency litigant, require the complaint to also state 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 12 months prior to filing the complaint, and the reason why the
individual visited the place of public accommodation.
This bill would become operative only if Senate Bill 251 of the
2015-16 Legislative Session, relating to disability access, is
enacted on or before January 1, 2016.
Existing Constitutional provisions require a statute that limits
the right of public access to meeting or writings of public officials
to be adopted with findings demonstrating the interested to be
protected by that limitation and the need to protect that interest.
This bill would declare that it includes limitations on access,
that the interests to be protected are the privacy rights of the
litigants, and that the need to protect those interests is to prevent
a chilling effect on litigation.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
The bill also would include technical changes to these provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 54.35 is added to the
Civil Code , immediately following Section 54.3
, to read:
54.35. (a) Notwithstanding any law, the owner of property to
which the general public is invited, as set forth in Section 54.1,
shall indemnify a microbusiness tenant of that property for any
liability under this part arising from any construction-related
accessibility claims if either of the following conditions apply:
(1) The construction-related barrier existed prior to the
initiation, renewal, or extension of the lease which is the basis of
the microbusiness tenant's liability.
(2) The construction-related barrier was created by parties other
than the microbusiness tenant after the initiation, renewal, or
extension of the lease which is the basis of the microbusiness tenant'
s liability.
(b) The duty of the owner to indemnify a microbusiness tenant
pursuant to subdivision (a) may be modified through a written
agreement that may be included as a separate rider to the lease
agreement, setting forth the terms under which the microbusiness
tenant is accepting some or all of the potential liability for
construction-related claims, including, but not limited to, a grant
of the authority for the microbusiness tenant to modify the structure
in order to comply with this part, and a process for determining the
owner's share of the costs of those modifications.
(c) For the purposes of this section, "microbusiness" has the same
meaning as set forth in Section 14837 of the Government Code.
(d) This section shall apply only to construction-related
liability arising from leases entered into, amended, or extended, on
and after January 1, 2016.
SEC. 2. Section 55 of the Civil Code
is amended to read:
55. Any person who is aggrieved or potentially aggrieved by a
violation of Section 54 or 54.1 of this code, Chapter 7 (commencing
with Section 4450) of Division 5 of Title 1 of the Government Code,
or Part 5.5 (commencing with Section 19955) of Division 13 of the
Health and Safety Code may bring an action to enjoin the violation.
The prevailing party in the action shall be entitled to
recover reasonable attorney's fees. The court
shall award costs and reasonable attorney's fees to a prevailing
plaintiff in an action filed pursuant to this section. If
the court finds that the plaintiff's case is clearly frivolous, it
shall award court costs and reasonable attorney's fees to the
defendant.
SECTION 1. SEC. 3. Section 55.3 of
the Civil Code is amended to read:
55.3. (a) For purposes of this section, the following apply:
(1) "Complaint" means a civil complaint that is filed or is to be
filed with a court and is sent to or served upon a defendant on the
basis of one or more construction-related accessibility claims, as
defined in this section.
(2) "Construction-related accessibility 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 place of public accommodation. "Construction-related
accessibility claim" does not include a claim of interference with
housing within the meaning of paragraph (2) of subdivision (b) of
Section 54.1, or any claim of interference caused by something other
than the construction-related accessibility condition of the
property, including, but not limited to, the conduct of any person.
(3) "Demand for money" means a prelitigation written document or
oral statement that is provided or issued to a building owner or
tenant, or the owner's or tenant's agent or employee, that does all
of the following:
(A) Alleges that 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, or alleges one or more
construction-related accessibility claims, as defined in paragraph
(2).
(B) Contains or makes a request or demand for money or an offer or
agreement to accept money.
(C) Is provided or issued whether or not the attorney intends to
file a complaint, or eventually files a complaint, in state or
federal court.
(4) "Demand letter" means a prelitigation written document that is
provided to a building owner or tenant, or the owner's or tenant's
agent or employee, 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, or alleges one or
more construction-related accessibility claims, as defined in
paragraph (2), and is provided whether or not the attorney intends to
file a complaint, or eventually files a complaint, in state or
federal court.
(b) An attorney shall provide the following items with each demand
letter or complaint sent to or served upon a defendant or potential
defendant alleging a construction-related accessibility claim:
(1) A written advisory on the form described in subparagraph (B),
or, until that form is available, on a separate page or pages that
are clearly distinguishable from the demand letter or complaint. The
advisory shall not be required in subsequent communications following
the initial demand letter or initial complaint unless a new
construction-related accessibility claim is asserted in the
subsequent demand letter or amended complaint.
(A) The advisory shall state as follows:
STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY
INFORMATION FOR BUILDING OWNERS AND TENANTS
This information is available in English, Spanish, Chinese,
Vietnamese, and Korean through the Judicial Council of California.
Persons with visual impairments can get assistance in viewing this
form through the Judicial Council Internet Web site at
www.courts.ca.gov.
California law requires that you receive this information because
the demand letter or court complaint you received with this document
claims that your building or property does not comply with one or
more existing construction-related accessibility laws or regulations
protecting the civil rights of persons with disabilities to access
public places.
YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability
access laws is a serious and significant responsibility that applies
to all California building owners and tenants with buildings open for
business to the public. You may obtain information about your legal
obligations and how to comply with disability access laws through the
Division of the State Architect at www.dgs.ca.gov. Information is
also available from the California Commission on Disability Access at
www.ccda.ca.gov/guide.htm.
YOU HAVE IMPORTANT LEGAL RIGHTS. The allegations made in the
accompanying demand letter or court complaint do not mean that you
are required to pay any money unless and until a court finds you
liable. Moreover, RECEIPT OF A DEMAND LETTER OR COURT COMPLAINT AND
THIS ADVISORY DOES NOT NECESSARILY MEAN YOU WILL BE FOUND LIABLE FOR
ANYTHING. You will have the right if you are later sued to fully
present your explanation why you believe you have not in fact
violated disability access laws or have corrected the violation or
violations giving rise to the claim.
You have the right to seek assistance or advice about this demand
letter or court complaint from any person of your choice. If you have
insurance, you may also wish to contact your insurance provider.
Your best interest may be served by seeking legal advice or
representation from an attorney, but you may also represent yourself
and file the necessary court papers to protect your interests if you
are served with a court complaint. If you have hired an attorney to
represent you, you should immediately notify your attorney.
If a court complaint has been served on you, you will get a
separate advisory notice with the complaint advising you of special
options and procedures available to you under certain conditions.
ADDITIONAL THINGS YOU SHOULD KNOW:
ATTORNEY MISCONDUCT. Except for limited circumstances, state law
generally requires that a prelitigation demand letter from an
attorney MAY NOT MAKE A REQUEST OR DEMAND FOR MONEY OR AN OFFER OR
AGREEMENT TO ACCEPT MONEY. Moreover, a demand letter from an attorney
MUST INCLUDE THE ATTORNEY'S STATE BAR LICENSE NUMBER.
If you believe the attorney who provided you with this notice and
prelitigation demand letter is not complying with state law, you may
send a copy of the demand letter you received from the attorney to
the State Bar of California by facsimile transmission to
1-415-538-2171, or by mail to the State Bar of California, 180 Howard
Street, San Francisco, CA, 94105, Attention: Professional
Competence.
REDUCING YOUR DAMAGES. If you are a small business owner and
correct all of the construction-related violations that are the basis
of the complaint against you within 30 days of being served with the
complaint, you may qualify for reduced damages if the matter results
in a court judgment. If you believe you qualify for reduced damages,
you may wish to consult an attorney to obtain legal advice, or
contact the California Commission on Disability Access for additional
information about the rights and obligations of business owners.
COMMERCIAL TENANT. If you are a commercial tenant, you may not be
responsible for ensuring that some or all portions of the premises
you lease for your business, including common areas such as parking
lots, are accessible to the public because those areas may be the
responsibility of your landlord. You may want to refer to your lease
agreement and consult with an attorney or contact your landlord, to
determine if your landlord is responsible under the terms of your
lease for maintaining and improving some or all of the areas you
lease to operate your business.
(B) On or before July 1, 2016, the Judicial Council shall update
the advisory form that may be used by an attorney to comply with the
requirements of subparagraph (A). The advisory form shall be in
substantially the same format and include all of the text set forth
in subparagraph (A). The advisory form shall be available in English,
Spanish, Chinese, Vietnamese, and Korean, and shall include a
statement that the advisory form is available in additional
languages, and the Judicial Council Internet Web site address where
the different versions of the advisory form are located. The advisory
form shall include Internet Web site information for the Division of
the State Architect and the California Commission on Disability
Access.
(2) An answer form developed by the Judicial Council, which allows
a defendant to respond to the complaint in the event a complaint is
filed.
(A) The answer form shall be written in plain language and allow
the defendant to state any relevant information affecting the
defendant's liability or damages including, but not limited to, the
following:
(i) 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 pursuant to Section 55.56.
(ii) Potential affirmative defenses available to the defendant,
including:
(I) An assertion that the defendant qualifies for reduced damages
pursuant to paragraph (1) or (2) of subdivision (f) of Section 55.56,
and facts supporting that assertion.
(II) An assertion that the defendant's landlord is responsible for
ensuring that some or all of the property leased by the defendant,
including the areas at issue in the complaint, are accessible to the
public. The defendant shall provide facts supporting that assertion,
and the name and contact information of the defendant's landlord.
(III) Any other affirmative defense the defendant wishes to
assert.
(iii) Whether the defendant made a written settlement offer that
was rejected by the plaintiff, or met with the plaintiff in a good
faith effort to negotiate a settlement of the complaint.
(iv) Any other information that the defendant believes is relevant
to his or her potential liability or damages.
(B) The answer form shall provide instructions to a defendant who
wishes to file the form as an answer to the complaint. The form shall
also notify the defendant that he or she may use the completed form
as an informal response to a demand letter or for settlement
discussion purposes.
(C) On or before July 1, 2016, the Judicial Council shall adopt
the answer form that may be used by an attorney to comply with the
requirements of this paragraph, and shall post the answer form on the
Judicial Council Internet web site.
(c) Subdivision (b) applies only to a demand letter or complaint
made by an attorney. This section does not affect the right to file a
civil complaint under any other law or regulation protecting the
physical access rights of persons with disabilities. Additionally,
this section does not require a party to provide or send a demand
letter to another party before proceeding against that party with a
civil complaint.
(d) This section does not apply to an action brought by the
Attorney General or any district attorney, city attorney, or county
counsel.
SEC. 4. Section 55.54 of the Civil Code
is amended to read:
55.54. (a) (1) An attorney who causes a summons and complaint to
be served in an action that includes a construction-related
accessibility claim, including, but not limited to, a claim brought
under Section 51, 54, 54.1, or 55, shall, at the same time, cause to
be served a copy of the application form specified in subdivision (c)
and a copy of the following notice, including, until January 1,
2013, the bracketed text, to the defendant on separate papers that
shall be served with the summons and complaint:
ADVISORY NOTICE TO DEFENDANT
YOU MAY BE ENTITLED TO ASK FOR A COURT STAY (AN ORDER TEMPORARILY
STOPPING ANY LAWSUIT) AND EARLY EVALUATION CONFERENCE IN THIS LAWSUIT
AND MAY BE ASSESSED REDUCED STATUTORY DAMAGES IF YOU MEET CERTAIN
CONDITIONS.
If the construction-related accessibility claim pertains to a site
that has a Certified Access Specialist (CASp) inspection report for
that site, or to a site where new construction or improvement was
approved after January 1, 2008, by the local building permit and
inspection process, you may make an immediate request for a court
stay and early evaluation conference in the construction-related
accessibility claim by filing the attached application form with the
court. You may be entitled to the court stay and early evaluation
conference regarding the accessibility claim only if ALL of the
statements in the application form applicable to you are true.
FURTHER, if you are a defendant described above (with a CASp
inspection report or with new construction after January 1, 2008),
and, to the best of your knowledge, there have been no modifications
or alterations completed or commenced since the CASp report or
building department approval of the new construction or improvement
that impacted compliance with construction-related accessibility
standards with respect to the plaintiff's claim, your liability for
minimum statutory damages may be reduced to $1,000 for each offense,
unless the violation was intentional, and if all construction-related
accessibility violations giving rise to the claim are corrected
within 60 days of being served with this complaint.
IN ADDITION, if your business is a small business that, over the
previous three years, or the existence of the business if less than
three years, employs 25 or fewer employees on average over that time
period and meets specified gross receipts criteria, you may also be
entitled to the court stay and early evaluation conference
conference, if the plaintiff in this case has filed
more than 15 lawsuits that allege construction-related accessibility
claims against places of public accommodation in the 12 months
prior to the date of this lawsuit. If you are a small businesses
that meets the employee and gross receipts criteria, you may also be
entitled to a court stay and an early evaluation conference,
and your minimum statutory damages for each claim may be reduced to
$2,000 for each offense, unless the violation was intentional, and if
all the alleged construction-related accessibility violations are
corrected within 30 days of being served with the complaint.
If you plan to correct the violations giving rise to the claim, you
should take pictures and measurements or similar action to document
the condition of the physical barrier asserted to be the basis for a
violation before undertaking any corrective action in case a court
needs to see the condition of a barrier before it was corrected.
The court will schedule the conference to be held within
70 90 days after you file the attached
application form.
If you are not a defendant with a CASp inspection report, until
a form is adopted by the Judicial Council, you may use the attached
form if you modify the form and supplement it with your declaration
stating any one of the following:
(1) Until January 1, 2018, that the site's new construction or
improvement on or after January 1, 2008, and before January 1, 2016,
was approved pursuant to the local building permit and inspection
process; that, to the best of your knowledge, there have been no
modifications or alterations completed or commenced since the
building department approval that impacted compliance with
construction-related accessibility standards with respect to the
plaintiff's claim; and that all violations giving rise to the claim
have been corrected, or will be corrected within 60 days of the
complaint being served.
(2) That the site's new construction or improvement passed
inspection by a local building department inspector who is a
certified access specialist; that, to the best of your knowledge,
there have been no modifications or alterations completed or
commenced since that inspection approval that impacted compliance
with construction-related accessibility standards with respect to the
plaintiff's claim; and that all violations giving rise to the claim
have been corrected, or will be corrected within 60 days of the
complaint being served.
(3) That your business is a small business with 25 or fewer
employees and meets the gross receipts criteria set out in Section
55.56 of the Civil Code, and that all violations giving rise to the
claim have been corrected, or will be corrected within 30 days of
being served with the complaint.]
The court will also issue an immediate stay of the proceedings
unless the plaintiff has obtained a temporary restraining order in
the construction-related accessibility claim. You may obtain a copy
of the application form, filing instructions, and additional
information about the stay and early evaluation conference through
the Judicial Council Internet Web site at
www.courts.ca.gov/selfhelp-start.htm.
You may file the application after you are served with a summons
and complaint, but no later than your first court pleading or
appearance in this case, which is due within 30 days after you
receive the summons and complaint. If you do not file the
application, you will still need to file your reply to the lawsuit
within 30 days after you receive the summons and complaint to contest
it. You may obtain more information about how to represent yourself
and how to file a reply without hiring an attorney at
www.courts.ca.gov/selfhelp-start.htm.
You may file the application without the assistance of an attorney,
but it may be in your best interest to immediately seek the
assistance of an attorney experienced in disability access laws when
you receive a summons and complaint. You may make an offer to settle
the case, and it may be in your interest to put that offer in writing
so that it may be considered under Section 55.55 of the Civil Code.
(2) An attorney who files a Notice of Substitution of Counsel to
appear as counsel for a plaintiff who, acting in propria persona, had
previously filed a complaint in an action that includes a
construction-related accessibility claim, including, but not limited
to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the
same time, cause to be served a copy of the application form
specified in subdivision (c) and a copy of the notice specified in
paragraph (1) upon the defendant on separate pages that shall be
attached to the Notice of Substitution of Counsel.
(b) (1) Notwithstanding any other law, upon being served with a
summons and complaint asserting a construction-related accessibility
claim, including, but not limited to, a claim brought under Section
51, 54, 54.1, or 55, a qualified defendant, or other defendant as
defined in paragraph (2), may file a request for a court stay and
early evaluation conference in the proceedings of that claim prior to
or simultaneous with that defendant's responsive pleading or other
initial appearance in the action that includes the claim. If that
defendant filed a timely request for stay and early evaluation
conference before a responsive pleading was due, the period for
filing a responsive pleading shall be tolled until the stay is
lifted. Any responsive pleading filed simultaneously with a request
for stay and early evaluation conference may be amended without
prejudice, and the period for filing that amendment shall be tolled
until the stay is lifted.
(2) This subdivision shall also apply to a defendant if any of the
following apply:
(A) Until January 1, 2018, the site's new construction or
improvement on or after January 1, 2008, and before January 1, 2016,
was approved pursuant to the local building permit and inspection
process, and the defendant declares with the application that, to the
best of the defendant's knowledge, there have been no modifications
or alterations completed or commenced since that approval that
impacted compliance with construction-related accessibility standards
with respect to the plaintiff's claim, and that all violations have
been corrected, or will be corrected within 60 days of being served
with the complaint.
(B) The site's new construction or improvement was approved by a
local public building department inspector who is a certified access
specialist, and the defendant declares with the application that, to
the best of the defendant's knowledge, there have been no
modifications or alterations completed or commenced since that
approval that impacted compliance with construction-related
accessibility standards with respect to the plaintiff's claim, and
that all violations have been corrected, or will be corrected within
60 days of being served with the complaint.
(C) The defendant is a small business described in subdivision (f)
of Section 55.56, and the defendant declares with the application
that all violations have been corrected, or will be corrected within
30 days of being served with the complaint.
(D) The defendant is a small business, as described in subdivision
(f) of Section 55.56, that has been served with a complaint filed by
a high-frequency litigant, as defined in subdivision (b) of Section
425.55 of the Code of Civil Procedure, asserting a
construction-related accessibility claim, including, but not limited
to, a claim brought under Section 51, 54, 54.1, or 55.
(3) Notwithstanding any other law, if the plaintiff had acted in
propria persona in filing a complaint that includes a
construction-related accessibility claim, including, but not limited
to, a claim brought under Section 51, 54, 54.1, or 55, a qualified
defendant, or a defendant described by paragraph (2), who is served
with a Notice of Substitution of Counsel shall have 30 days to file
an application for a stay and an early evaluation conference. The
application may be filed prior to or after the defendant's filing of
a responsive pleading or other initial appearance in the action that
includes the claim, except that an application may not be filed in a
claim in which an early evaluation conference or settlement
conference has already been held on the claim.
(c) (1) An application for an early evaluation conference and stay
by a qualified defendant shall include a signed declaration that
states both of the following:
(A) The site identified in the complaint has been CASp-inspected
or meets applicable standards, or is CASp determination pending or
has been inspected by a CASp, and if the site is CASp-inspected or
meets applicable standards, there have been no modifications
completed or commenced since the date of inspection that may impact
compliance with construction-related accessibility standards to the
best of the defendant's knowledge.
(B) An inspection report pertaining to the site has been issued by
a CASp. The inspection report shall be provided to the court and the
plaintiff at least 15 days prior to the court date set for the early
evaluation conference.
(2) An application for an early evaluation conference and stay by
a defendant described by subparagraph (A) of paragraph (2) of
subdivision (b), which may be filed until January 1, 2018, shall
include a signed declaration that states all of the following:
(A) The site's new construction or improvement was approved
pursuant to the local building permit and inspection process on or
after January 1, 2008, and before January 1, 2016.
(B) To the best of the defendant's knowledge there have been no
modifications or alterations completed or commenced since that
approval that impacted compliance with construction-related
accessibility standards with respect to the plaintiff's claim.
(C) All construction-related violations giving rise to the claim
have been corrected, or will be corrected within 60 days of the
complaint being served upon the defendant.
(3) An application for an early evaluation conference and stay by
a defendant described in subparagraph (B) of paragraph (2) of
subdivision (b) shall include a signed declaration that states all of
the following:
(A) The site's new construction or improvement was approved by a
local building department inspector who is a certified access
specialist.
(B) To the best of the defendant's knowledge there have been no
modifications or alterations completed or commenced since that
approval that impacted compliance with construction-related
accessibility standards with respect to the plaintiff's claim.
(C) All
construction related violations giving rise to the claim have been
corrected, or will be corrected within 60 days of the complaint being
served upon the defendant.
(4) An application for an early evaluation conference and stay by
a defendant described by subparagraph (C) of paragraph (2) of
subdivision (b) shall include the materials listed in paragraphs (5)
and (6) of this subdivision, and shall include a signed declaration
that states both of the following:
(A) The defendant is a small business that employs 25 or fewer
employees and meets the gross receipts eligibility criteria provided
in paragraph (2) of subdivision (f) of Section 55.56.
(B) All construction-related violations giving rise to the claim
have been corrected, or will be corrected within 30 days of the
complaint being served upon the defendant.
(5) An application for an early evaluation conference and stay by
a small business defendant under paragraph (4) shall include evidence
showing correction of all violations within 30 days of the service
of the complaint and served upon the plaintiff with the reply unless
the application is filed prior to completion of the corrections. In
that event, the evidence shall be provided to the court and served
upon the plaintiff within 10 days of the court order as provided in
paragraph (4) of subdivision (d). This paragraph shall not be
construed to extend the permissible time under subdivision (f) of
Section 55.56 to make the corrections.
(6) An application for an early evaluation conference and stay by
a small business defendant under paragraph (4) shall also include
both of the following, which shall be confidential documents filed
only with the court and not served upon or available to the
plaintiff:
(A) Proof of the defendant's number of employees, as shown by wage
report forms filed with the Employment Development Department.
(B) Proof of the defendant's average gross receipts for the
previous three years, or for the existence of the business if less
than three years, as shown by a federal or state tax document.
(7) An application for an early evaluation conference and stay by
a defendant described by subparagraph (D) of paragraph (2) of
subdivision (b) shall include a declaration that the defendant is a
small business that employs 25 or fewer employees and meets the gross
receipts eligibility criteria provided in paragraph (2) of
subdivision (f) of Section 55.56 and shall also include both of the
following, which shall be confidential documents filed only with the
court and not served upon or available to the plaintiff:
(A) Proof of the defendant's number of employees, as shown by wage
report forms filed with the Employment Development Department.
(B) Proof of the defendant's average gross receipts for the
previous three years, or for the existence of the business if less
than three years, as shown by a federal or state tax document.
(7)
(8) The following provisional request and notice forms
may be used and filed by a qualified defendant until forms are
adopted by the Judicial Council for those purposes pursuant to
subdivision ( l ): GRAPHIC INSERT HERE: SEE PRINTED
VERSION OF THE BILL]
(8)
(9) The provisional forms and any replacement Judicial
Council forms shall include the defendant's declaration of proof of
service of the application, the notice of the court's order, and the
court's order pursuant to subdivision (d).
(d) Upon the filing of an application for stay and early
evaluation conference by a qualified defendant, or a defendant
described by paragraph (2) of subdivision (b), the court shall
immediately issue an order that does all of the following:
(1) Grants a 90-day stay of the proceedings with respect to the
construction-related accessibility claim, unless the plaintiff has
obtained temporary injunctive relief that is still in place for the
construction-related accessibility claim.
(2) Schedules a mandatory early evaluation conference for a date
as soon as possible from the date of the order, but in no event later
than 70 days after issuance of the order, and in no event earlier
than 50 days after the filing of the request.
(3) Directs the parties, and any other person whose authority is
required to negotiate and enter into settlement, to appear in person
at the time set for the conference. Appearance by counsel shall not
satisfy the requirement that the parties or those with negotiation
and settlement authority personally appear, provided, however, that
the court may allow a party who is unable to attend in person due to
his or her disability to participate in the hearing by telephone or
other alternative means or through a representative authorized to
settle the case.
(4) (A) Directs the qualified defendant to file with the court and
serve on the plaintiff a copy of any relevant CASp inspection report
at least 15 days before the date of the conference. The CASp
inspection report is confidential and is available only as set forth
in paragraph (5) of this subdivision and in paragraph (4) of
subdivision (e).
(B) Directs a defendant described by subparagraph (A) or (B) of
paragraph (2) of subdivision (b) who has filed a declaration stating
that the violation or violations have been corrected, or will be
corrected within 60 days of service of the complaint to file with the
court and serve on the plaintiff evidence showing correction of the
violation or violations within 10 calendar days after the completion
of the corrections.
(C) Directs a defendant described by subparagraph (C) of paragraph
(2) of subdivision (b) who has filed a declaration stating that the
violation or violations have been corrected, or will be corrected
within 30 days of service of the complaint to file with the court and
serve on the plaintiff within 10 days after issuance of the court
order evidence of correction of the violation or violations, if that
evidence showing correction was not filed previously with the
application and served on the plaintiff.
(5) Directs the parties that the CASp inspection report may be
disclosed 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
involved in the evaluation and settlement of the case.
(6) If the defendant so requests, directs the parties that no
later than 30 days after issuance of the court order the parties and
their counsel, accompanied by their experts if the parties so elect,
shall meet in person at the subject premises. If plaintiff alleges
only programmatic or policy violations, the parties and their counsel
may meet in person at any mutually agreeable location. They shall
jointly inspect the portions of the subject premises, and shall
review any programmatic or policy issues, that are claimed to
constitute a violation of a construction-related accessibility
standard.
(6)
(7) Directs the plaintiff to file with the court and
serve on the defendant at least 15 days before the date of the
conference a statement that includes, to the extent reasonably known,
for use solely for the purpose of the early evaluation conference,
all of the following:
(A) An itemized list of specific conditions on the subject
premises that are the basis of the claimed violations of
construction-related accessibility standards in the plaintiff's
complaint.
(B) The amount of damages claimed.
(C) The amount of attorney's fees and costs incurred to date, if
any, that are being claimed.
(D) Any demand for settlement of the case in its entirety.
(e) (1) A party failing to comply with any court order may be
subject to court sanction at the court's discretion.
(2) (A) The court shall lift the stay when the defendant has
failed to file and serve the CASp inspection report prior to the
early evaluation conference and has failed also to produce the report
at the time of the early evaluation conference, unless the defendant
shows good cause for that failure.
(B) The court shall lift the stay when a defendant described by
paragraph (2) of subdivision (b) has failed to file and serve the
evidence showing correction of the violation or violations as
required by law.
(3) The court may lift the stay at the conclusion of the early
evaluation conference upon a showing of good cause by the plaintiff.
Good cause may include the defendant's failure to make reasonably
timely progress toward completion of corrections noted by a CASp.
(4) The CASp inspection report filed and served pursuant to
subdivision (d) shall remain confidential throughout the stay and
shall continue to be confidential until the conclusion of the claim,
whether by dismissal, settlement, or final judgment, unless there is
a showing of good cause by any party. Good cause may include the
defendant's failure to make reasonably timely progress toward
completion of corrections noted by a CASp. The confidentiality of the
inspection report shall terminate upon the conclusion of the claim,
unless the owner of the report obtains a court order pursuant to the
California Rules of Court to seal the record.
(f) All discussions at the early evaluation conference shall be
subject to Section 1152 of the Evidence Code. It is the intent of the
Legislature that the purpose of the evaluation conference shall
include, but not be limited to, evaluation of all of the following,
as applicable:
(1) Whether the defendant is entitled to the 90-day stay for some
or all of the identified issues in the case, as a qualified
defendant.
(2) The current condition of the site and the status of any plan
of corrections, including whether the qualified defendant has
corrected or is willing to correct the alleged violations, and the
timeline for doing so.
(3) Whether subdivision (f) of Section 55.56 may be applicable to
the case, and whether all violations giving rise to the claim have
been corrected within the specified time periods.
(4) Whether the case, including any claim for damages or
injunctive relief, can be settled in whole or in part.
(5) Whether the parties should share other information that may
facilitate early evaluation and resolution of the dispute.
(g) Nothing in this section precludes any party from making an
offer to compromise pursuant to Section 998 of the Code of Civil
Procedure.
(h) For a claim involving a qualified defendant, as provided in
paragraph (1) of subdivision (b), the court may schedule additional
conferences and may extend the 90-day stay for good cause shown, but
not to exceed one additional 90-day extension.
(i) Early evaluation conferences shall be conducted by a superior
court judge or commissioner, or a court early evaluation conference
officer. A commissioner shall not be qualified to conduct early
evaluation conferences pursuant to this subdivision unless he or she
has received training regarding disability access requirements
imposed by the federal Americans with Disabilities Act of 1990
(Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), state laws that
govern access to public facilities, and federal and state regulations
adopted pursuant to those laws. For purposes of this subdivision, a
"court early evaluation conference officer" means an attorney
employed by the court who has received training regarding disability
access requirements imposed by the federal Americans with
Disabilities Act of 1990, state laws that govern access to public
facilities, and federal and state regulations adopted pursuant to
those laws. Attorneys serving in this capacity may also be utilized
by the court for other purposes not related to these proceedings.
(j) Nothing in this part shall be deemed to make any inspection
report, opinion, statement, or other finding or conclusion of a CASp
binding on the court, or to abrogate in any manner the ultimate
authority of the court to make all appropriate findings of fact and
law. The CASp inspection report and any opinion, statement, finding,
or conclusion therein shall be given the weight the trier of fact
finds that it deserves.
(k) Nothing in this part shall be construed to invalidate or limit
any California construction-related accessibility standard that
provides greater or equal protection for the rights of individuals
with disabilities than is afforded by the federal Americans with
Disabilities Act (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.)
and the federal regulations adopted pursuant to that act.
( l ) (1) The Judicial Council shall, by January 1,
2013, prepare and post on its Internet Web site instructions and a
form for use by a qualified defendant, or other defendant described
by paragraph (2) of subdivision (b), to file an application for stay
and early evaluation conference as provided in subdivisions (b) and
(c), a form for the court's notice of stay and early evaluation
conference, and any other forms appropriate to implement the
provisions relating to early evaluation conferences. Until those
forms are adopted, the Judicial Council shall post on its Internet
Web site the provisional forms set forth in subdivision (c).
(2) Until the adoption of the forms as provided in paragraph (1),
the provisional application form may be used by a defendant described
by paragraph (2) of subdivision (b).
(3) In lieu of the provisions specified in number 3 of page 1 of
the application form set forth in paragraph (7) of subdivision (c),
the application shall include one of the following declarations of
the defendant as to the basis for the application, as follows:
(A) That all of the following apply to a defendant described by
subparagraph (A) of paragraph (2) of subdivision (b):
(i) The site's new construction or improvement was approved
pursuant to the local building permit and inspection process on or
after January 1, 2008, and before January 1, 2016.
(ii) To the best of the defendant's knowledge there have been no
modifications or alterations completed or commenced since that
approval that impacted compliance with construction-related
accessibility standards with respect to the plaintiff's claim.
(iii) All the violations giving rise to the claim have been
corrected, or will be corrected within 60 days of the complaint being
served.
(B) That all of the following apply to a defendant described by
subparagraph (B) of paragraph (2) of subdivision (b):
(i) The site's new construction or improvement was approved by a
local public building department inspector who is a certified access
specialist.
(ii) To the best of the defendant's knowledge there have been no
modifications or alterations completed or commenced since that
approval that impacted compliance with construction-related
accessibility standards with respect to the plaintiff's claim.
(iii) All the violations giving rise to the claim have been
corrected, or will be corrected within 60 days of the complaint being
served.
(C) That both of the following apply to a defendant described by
subparagraph (C) of paragraph (2) of subdivision (b):
(i) The defendant is a small business described in paragraph (2)
of subdivision (f) of Section 55.56.
(ii) The violation or violations giving rise to the claim have
been corrected, or will be corrected within 30 days of the complaint
being served.
(4) In lieu of the provision specified in number 4(c) of page 1 of
the application form set forth in paragraph (7) of subdivision (c),
the application shall include a request that the court order the
defendant to do either of the following:
(A) For a defendant who has filed a declaration stating that all
violations have been corrected, or will be corrected within 60 days
of service of the complaint, file with the court and serve on the
plaintiff evidence showing correction of the violation or violations
within 10 calendar days of the completion of the corrections.
(B) For a defendant who is a small business that has filed a
declaration stating that all the violations have been corrected, or
will be corrected within 30 days of the service of the complaint,
file with the court and serve on the plaintiff evidence showing
correction of the violation or violations within 10 calendar days
after issuance of the court order, if that evidence showing
correction was not filed previously with the application and served
on the plaintiff.
(5) The Judicial Council shall also prepare and post on its
Internet Web site instructions and cover pages to assist plaintiffs
and defendants, respectively, to comply with their filing
responsibilities under subdivision (d). The cover pages shall also
provide for the party's declaration of proof of service of the
pertinent document served under the court order.
(m) The stay provisions shall not apply to any
construction-related accessibility claim in which the plaintiff has
been granted temporary injunctive relief that remains in place.
(n) This section shall not apply to any action brought by the
Attorney General, or by any district attorney, city attorney, or
county counsel.
(o) The amendments to this section made by Senate Bill 1186 of the
2011-12 Regular Session of the Legislature shall apply only to
claims filed on or after the operative date of that act. Nothing in
this part is intended to affect any complaint filed before that date.
(p) Nothing in this part is intended to affect existing law
regarding class action requirements.
SEC. 5. Section 425.50 of the Code of
Civil Procedure is amended to read:
425.50. (a) An allegation of a construction-related accessibility
claim in a complaint, as defined in subdivision (a) of Section 55.52
of the Civil Code, shall state facts sufficient to allow a
reasonable person to identify the basis of the violation or
violations supporting the claim, including all of the following:
(1) A plain language explanation of the specific access barrier or
barriers the individual encountered, or by which the individual
alleges he or she was deterred, with sufficient information about the
location of the alleged barrier to enable a reasonable person to
identify the access barrier.
(2) The way in which the barrier denied the individual full and
equal use or access, or in which it deterred the individual, on each
particular occasion.
(3) The date or dates of each particular occasion on which the
claimant encountered the specific access barrier, or on which he or
she was deterred.
(4) (A) Except in complaints that allege physical injury or damage
to property, a complaint filed by or on behalf of a high-frequency
litigant shall also state all of the following:
(i) That the complaint is filed by, or on behalf of, a
high-frequency litigant.
(ii) The number of complaints alleging a construction-related
accessibility claim that the high-frequency litigant has filed during
the 12 months prior to filing the complaint.
(iii) The reason the individual was in the geographic area of the
defendant's business.
(iv) The reason why the individual desired to access the defendant'
s business, including the specific commercial, business, personal,
social, leisure, recreational, or other purpose.
(B) As used in this section "high-frequency litigant" has the same
meaning as set forth in subdivision (b) of Section 425.55.
(b) A complaint alleging a construction-related accessibility
claim, as those terms are defined in subdivision (a) of Section 55.3
of the Civil Code, shall be verified by the plaintiff. A complaint
filed without verification shall be subject to a motion to strike.
(c) A complaint alleging a construction-related accessibility
claim shall be signed by at least one attorney of record in the
attorney's individual name, or, if the party is not represented by an
attorney, shall be signed by the party. By signing the complaint,
the attorney or unrepresented party is certifying that, to the best
of the person's knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances, all of the following
conditions are met:
(1) 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.
(2) The claims, defenses, and other legal contentions therein are
warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the
establishment of new law.
(3) The allegations and other factual contentions have evidentiary
support or, if specifically so identified, are likely to have
evidentiary support after a reasonable opportunity for further
investigation or discovery.
(4) 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.
(d) A court may, after notice and a reasonable opportunity to
respond, determine whether subdivision (c) has been violated and, if
so, impose sanctions as provided in Section 128.7 for violations of
subdivision (b) Section 128.7.
(c)
(e) Nothing in this section shall limit the right of a
plaintiff to amend a complaint under Section 472, or with leave of
the court under Section 473. However, an amended pleading alleging a
construction-related accessibility claim shall be pled as required by
subdivision (a).
(d)
(f) This section shall become operative on January 1,
2013.
SEC. 6. Section 425.55 is added to the
Code of Civil Procedure , to read
425.55. (a) The Legislature finds and declares all of the
following:
(1) Protection of the civil rights of persons with disabilities is
of the utmost importance to this state, and private enforcement is
the essential means of achieving that goal, as the law has been
designed.
(2) In recent years, 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,
that are filed frequently against small businesses on the basis of
boilerplate complaints.
(3) Therefore, given these special and unique circumstances, the
provisions of this section are warranted for this limited group of
plaintiffs.
(b) For the purposes of this article, "high-frequency litigant"
means a person who utilizes court resources in actions arising from
alleged construction-related access violations at such a high level
that it is appropriate that additional safeguards apply so as to
ensure that the claims are warranted and appropriate. A
"high-frequency litigant" means plaintiff who has filed 15 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.
SEC. 7. Section 425.60 is added to the
Code of Civil Procedure , to read:
425.60. (a) Any written settlement agreement regarding a
construction-related accessibility claim shall be filed by the
plaintiff with the California Commission on Disability Access within
30 days of the execution of the agreement.
(b) Except as set forth in subdivision (e), a high frequency
litigant shall seek and obtain approval of the court with respect to
the settlement of a construction-related accessibility claim against
a small business as defined by subdivision (f) of section 55.56 to
determine that the proposed settlement is lawful, reasonable, and
non-collusive.
(c) A party requesting court review of a settlement shall do so by
means of a motion for a settlement conference, which shall be
scheduled no later than 30 court days after the filing of the motion.
If the matter is not scheduled to be heard within 30 court days, the
settlement shall be deemed approved. A party requesting a court
review of the settlement shall attach a copy of the settlement
agreement or a description its material terms in the motion.
(d) If the court does not approve the settlement, it shall state
the reasons for decision in a written order and the litigation shall
proceed. If the hearing occurs prior to the expiration of a stay of
the proceedings pursuant to any provision of law, including, but not
limited to, Section 55.54, the court shall terminate the stay on the
date of the settlement conference.
(e) This section shall not apply in any of the following
circumstances:
(1) The settlement agreement provides for the removal or
remediation of some or all of the violations described in the
complaint by a specified date, unless removal or remediation of the
violations cannot be accomplished because of the closure or
elimination of the place of public accommodation or a feature or
element of the place of public accommodation or because the public
accommodation was temporary or ephemeral in nature, such as an
irregularly held festival, fair, performance, or athletic games.
(2) The complaint alleges that the plaintiff suffered physical
injuries or damage to property.
(f) Nothing set forth in this section is intended to affect the
law of the interpretation of contracts. There is a presumption that
settlement agreements shall be enforceable. It shall be deemed bad
faith for any party to negotiate a settlement agreement and then
dispute the terms thereof at any hearing held under this section
absent good cause shown for a change in position. If the defendant
seeks to contest a settlement to which the defendant has previously
agreed, he or she shall do so by filing a notice of his or her
intent to dispute the
settlement which shall be accompanied by a declaration setting forth
all of the reasons why the party believes that circumstances have
changed and that the settlement is no longer just, fair, or
enforceable. This notice shall be filed with the court no later than
15 days before the date of the hearing scheduled pursuant to
subdivision (c) and shall be served on the plaintiff concurrently
with filing.
(g) An attorney who violates this section or Section 425.55, shall
be subject to discipline by the State Bar.
SEC. 8. Section 19953 of the Health and
Safety Code is amended to read:
19953. Any person who is aggrieved or potentially aggrieved by a
violation of this part, Chapter 7 (commencing with Section 4450) of
Division 5 of Title 1 of the Government Code, or Part 5.5 (commencing
with Section 19955) of Division 13 of the Health and Safety Code may
bring an action to enjoin the violation. The prevailing
party in the action shall be entitled to recover reasonable attorney'
s fees. The court shall award costs and
reasonable attorney's fees to a prevailing plaintiff in an action
filed pursuant to this section. If the court finds that
the plaintiff's case is clearly frivolous, it shall award court costs
and reasonable attorney's fees to the defendant.
SEC. 9. This act shall become operative only if
Senate Bill 251 of the 2015-16 Legislative Session, relating to
disability access, is enacted on or before January 1, 2016.
SEC. 10. The Legislature finds and declares that
Section 4 of this act limits the public's right of access to public
documents within the meaning of Section 3 of Article I of the
California Constitution. Pursuant to that constitutional provision,
the Legislature makes the following findings to demonstrate the
interest and the need for protecting that interest:
(a) The interest protected by this limitation is the privacy
rights of litigants.
(b) The need for protecting those interests is to preclude the
chilling effect on litigation if public disclosure were required.
SEC. 11. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.