Bill Text: CA AB223 | 2013-2014 | Regular Session | Introduced

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Bill Title: Civil actions: disabled access.

Spectrum: Partisan Bill (Republican 6-0)

Status: (Introduced - Dead) 2014-02-03 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB223 Detail]

Download: California-2013-AB223-Introduced.html

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BILL NUMBER: AB 223	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Olsen
   (Coauthors: Assembly Members Achadjian, Bigelow, Harkey, Nestande,
and Wagner)

                        FEBRUARY 4, 2013

   An act to amend Section 55.54 of the Civil Code, relating to
disability access.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 223, as introduced, Olsen. Civil actions: disabled access.
   Existing law provides, upon being served with a summons and
complaint asserting a construction-related accessibility claim, that
specified defendants may file a request for a court stay and early
evaluation conference in the proceedings, as specified.
   This bill would permit a local government, as defined, to file a
request for a court stay and early evaluation conference pursuant to
this provision.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  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 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 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 local government. For purposes of this
subparagraph, a "local government" means a county, city, city and
county, including a chartered city or county, or a public or
municipal corporation. 
   (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) 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) 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) 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.