UPDATE: The bill passed both houses of the Legislature and was sent to the Governor’s desk on September 1, 2012.
California businesses have for years prayed for relief from drive-by disability access lawsuits. SB 1608 of 2008 was widely-hoped to be that savior, but has proven to have relatively little effect. All other attempts at legislative reform have been meet with fierce opposition from disability rights advocates and died. Indicative of the crisis the California laws have created, earlier this year California Senator Dianne Feinstein publicly called for the California Legislature to enact reforms, stating (federalism principles aside because the offending provisions are state law) that she would take action if the California Legislature did not.
With the 2011-12 California Legislative session coming to a close in a matter of days, there is some hope for relief:
Senate Bill 1186, carried by Senators Steinberg and Dutton, with amendments approved on August 24, makes revisions to existing procedures that require an attorney to provide a business with certain notices with a demand regarding construction-related disability violations. Nothing particularly remarkable there.
What is notable is that the bill finally attempts to change a plaintiff’s entitlement to statutory damages, which are currently $4,000 per violation. As currently drafted, this bill would reduce a defendant’s minimum liability for statutory damages under the Unruh and Disabled Persons Acts from $4,000 to $1,000 for each offense if the defendant has corrected all construction-related violations that are the basis of the claim within 60 days of being served with the complaint and the area is new construction since 2008 that was inspected and approved by the local building department or was CASp-inspected. Alternatively, the bill would reduce minimum liability from $4,000 to $2,000 for each offense if the defendant is a small business and has corrected all construction-related violations that are the basis of the claim within 30 days of being served with the complaint.
Also of note is a provision that requires a court, where the plaintiff alleges multiple claims for the same alleged violation on different occasions, to consider the reasonableness of the plaintiff’s need to repeatedly visit the public accommodation in light of the plaintiff’s obligation to mitigate damages. The bill specifically states this provision is intended to address misuse of the Unruh and Disabled Persons Acts by lawyers and plaintiffs who allege the same barrier deterred the plaintiff on repeated occasions from visiting the public accommodation, for the purpose of stacking statutory liability and intimidating defendants into settlements.
Businesses, don’t get your hopes up yet. The bill leaves the door open for legal arguments that could render the reforms meaningless. It specifies that the damages reduction provision “is not applicable to intentional violations, including, but not limited to, where the defendant had knowledge of the alleged violation from a prior notice or demand letter from the plaintiff or plaintiff’s attorney, but failed to act in a reasonable time and manner”. The damages reduction provision also does not affect the awarding of actual damages or treble actual damages. The bill only applies to litigation initiated after the bill’s effective date, but it would go into effect immediately upon the Governor’s signing of the bill rather than the usual January 1st date.
It’s also uncertain whether the bill will actually pass. The bill makes an appropriation, charges businesses a $1 fee, and requires a 2/3 vote of the Legislature. As of yesterday, the bill awaited approval of the Assembly Judiciary Committee, with only a few days remaining for the bill to make its way through the Assembly.
Interestingly, while Democrat Senator Steinberg reportedly opposed Feinstein’s call for reform, he has now joined Republican Dutton in this reform effort as an author of the bill. Perhaps there is reason for optimism.
We’ll keep you posted…