BILL NUMBER: AB 1521 AMENDED BILL TEXT 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,Holden, and O' Donnelland Holden )) MARCH 10, 2015 An act to amend Section 55.3 of the Civil 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. The bill also would include technical changes to these provisions. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. 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 AttorneyGeneral, or byGeneral or any district attorney, city attorney, or county counsel.