CREEPING PROGRESS: CALIFORNIA TAKES ADDITIONAL STEPS TO LIMIT SERIAL ADA PLAINTIFFS

POSTED ON 10/04/2012, FILED IN Recent Developments

Article III of the Americans with Disability Act (the “ADA”), as well as California’s Unruh Civil Rights Act, provide that persons with disabilities are entitled to full and equal access to public accommodations.  Although federal law only allows an individual to sue for injunctive relief, California law provides for damages in the minimum amount of $4,000 for each violation.  This has resulted in a proliferation of California lawsuits, often filed serially by professional plaintiffs and their “mill” attorneys against small businesses and property owners, seeking to extract thousands of dollars for alleged technical violations of these statutes.

In an effort to deter these serial complainants and attorneys and their abusive targeting of California businesses, California recently enacted SB 1186, which was signed into law by Governor Brown on September 19, 2012.  Among other things, as to accessibility claims with respect to a place of public accommodation, the new law:

• Prohibits a demand letter from including a demand for money to a building owner or tenant, or offering to accept any payment, settlement or compensation pursuant to a demand for money;
• Requires a demand letter or complaint to state facts sufficient to allow identification of the basis for the claim, including an explanation of the specific access barrier the claimant encountered, and the date(s) of the violation(s);
• Requires that a complaint be verified by the plaintiff, and makes any complaint filed without a verification subject to a motion to strike;
• Permits certain qualifying defendants to file a request for a court stay and early evaluation conference and authorizes a defendant who does not qualify for an early evaluation conference to request a mandatory evaluation conference to be conducted by the court within 120 to 180 days of the request;
• Requires the court, in assessing liability in any action alleging multiple claims for the same violation on different particular occasions, to consider the reasonableness of the plaintiff’s conduct in light of the plaintiff’s obligation, if any, to mitigate damages; and
• Reduces a defendant’s minimum liability for statutory damages to either $1,000 or $2,000 for each unintentional offense if the defendant meets certain conditions specified in the statute and has corrected all violations within either 30 or 60 days of being served with the complaint, depending on the circumstances.

While SB 1186 will not prevent unwarranted ADA lawsuits entirely, this reform is a step in the right direction for California business owners and their tenants who show good faith in trying to comply with the law and are willing to correct ADA violations.

Importantly, the new law also imposes a new obligation on the part of property owners who lease commercial premises:  For any commercial property leased after July 1, 2013, the property owner/lessor is required to state on the lease form or rental agreement whether the property was inspected by a Certified Access Specialist, and if so, whether the property has or has not been determined to meet all applicable accessibility standards.

For more information or advice on how these changes may affect you, please contact us.