Bill Text: CA SB209 | 2009-2010 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Civil actions: disabled access.

Spectrum: Bipartisan Bill

Status: (Passed) 2009-10-11 - Chaptered by Secretary of State. Chapter 569, Statutes of 2009. [SB209 Detail]

Download: California-2009-SB209-Amended.html

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BILL NUMBER: SB 209	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JULY 2, 2009
	AMENDED IN ASSEMBLY  JUNE 3, 2009

INTRODUCED BY   Senators Corbett and Harman

                        FEBRUARY 23, 2009

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


	LEGISLATIVE COUNSEL'S DIGEST


   SB 209, as amended, Corbett. Civil actions: disabled access.
   Existing law requires a court, with respect to an action involving
a construction-related accessibility claim, to issue an order that,
among other things, grants a 90-day stay of the proceedings with
respect to that claim, schedules an early evaluation conference, and
directs the defendant to file with the court under seal and serve on
the plaintiff a copy of any relevant Certified Access Specialist
inspection report, which shall be subject to a protective court
order, as specified, if the defendant has satisfied certain
requirements relating to inspection of the site at issue. Existing
law requires the early evaluation conferences be conducted by a
superior court judge or commissioner, or a court early evaluation
conference officer, as defined.
   This bill would instead require the Certified Access Specialist
inspection report to remain confidential and would allow disclosure
only to the parties to the action, the parties' attorneys, and others
 necessary to the   involved in the evaluation
and  settlement of the case, as specified. The bill would also
require the report to remain confidential  throughout the
stay and  until the conclusion of the claim, unless there is
a showing of good cause by any party.
   This bill would make conforming and related technical changes.
   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 to the defendant on separate
papers that shall be served with the summons and complaint:


   NOTICE TO DEFENDANT


  YOU MAY BE ENTITLED TO ASK FOR A STAY (TEMPORARY STOPPAGE) AND
EARLY EVALUATION CONFERENCE IN THIS LAWSUIT.
  If the construction-related accessibility claim pertains to a site
that has been inspected by a Certified Access Specialist (CASp) and
you have an inspection report for that site, 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 are true.

  The court will schedule the conference to be held within 50 days
after you file the attached application form. 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. At your option, you may be, but need not be,
represented by an attorney to file the application to request the
early evaluation conference. 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 http://www.courtinfo.ca.gov/selfhelp/.
  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 have an attorney,
you will need to file the application within 30 days after you
receive the summons and complaint to request the stay and early
evaluation conference. 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 http://www.courtinfo.ca.gov/selfhelp/.
If a plaintiff representing himself or herself hires an attorney
after the case is filed, you will have 30 days to file an application
for a court stay and early evaluation conference after you receive a
Notice of Substitution of Counsel, unless an early evaluation
conference or settlement conference has already been held.
  You may file the application form 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 Civil Code Section 55.55.

   (2) An attorney who files a Notice of Substitution of Counsel to
appear as counsel for a plaintiff who, acting in propia 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 provision of 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 may file a
request for a court stay and early evaluation conference in the
proceedings of that claim prior to or simultaneous with the qualified
defendant's responsive pleading or other initial appearance in the
action that includes the claim. If the qualified 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) Notwithstanding any other provision of law, if the plaintiff
had acted in propia 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 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
shall include a signed declaration that declares both of the
following:
   (A) The site identified in the complaint has been CASp-inspected
or is CASp determination pending and, if the site is CASp-inspected,
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) 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 (k):
[GRAPHIC INSERT HERE:  SEE PRINTED VERSION OF THE BILL]
   (3) 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, 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 50 days after issuance of the order, and in no event earlier
than 21 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) Directs the 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  or   and  in paragraph
(4) of subdivision (e).
   (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
 necessary to the   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) 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.
   (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  for the duration of
the litigation,  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:
   (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 the case, including any claim for damages or
injunctive relief, can be settled in whole or in part.
   (4) 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) 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 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 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 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 prepare and post on its
Internet Web site instructions and a form for a qualified defendant
to use to file an application for stay and early evaluation
conference as provided in subdivisions (b) and (c), and a form for
the court's notice of stay and early evaluation conference. Until
those forms are adopted, the Judicial Council shall post on its
Internet Web site the provisional forms set forth in subdivision (c).

   (2) 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) This part shall apply only to claims filed on or after January
1, 2009. Nothing in this part is intended to affect litigation filed
before that date.
   (p) Nothing in this part is intended to affect existing law
regarding class action requirements.