Today's Law As Amended


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AB-357 Equal access rights: construction-related access claims.(2011-2012)



As Amends the Law Today


SECTION 1.

 Section 55.3 of the Civil Code is amended to read:

55.3.
 (a) For purposes of this section, the following shall  apply:
(1) “Complaint” means a civil complaint that is filed or is to be filed with a court 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) “Demand for money” means a written document that is provided to a building owner or tenant, or an agent or employee of a building owner or tenant, that contains a request for money on the basis of one or more construction-related accessibility claims, as defined in paragraph (3).
(2) (3)  “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 accommodations  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) (b)  A written advisory on  An attorney shall provide a written advisory with each demand for money or complaint sent to or served by him or her upon a defendant, in  the form described in subparagraph (B), or, until that form is available, on a separate  subdivision (c), and on a  page or pages that are separate and  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. for money or complaint, as follows:  
(A) The advisory shall state as follows:

STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY  IMPORTANT  INFORMATION FOR BUILDING OWNERS AND TENANTS

This information form  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. http://www.courtinfo.ca.gov. 
California Existing  law requires that you receive this information because the demand letter  for money  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  Architect. Commencing September 1, 2009, information will also be  available from the California Commission on Disability Access at www.ccda.ca.gov/guide.htm. Internet Web site. 
YOU HAVE IMPORTANT LEGAL RIGHTS. The allegations made in the accompanying demand letter or court complaint do not mean that you are  You are not  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.  may wish to promptly consult an attorney experienced in this area of the law to get helpful legal advice or representation in responding to the demand for money or complaint you received. You may contact the local bar association in your county for information on available attorneys in your area.  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  You have the right to seek assistance or advice about this demand for money or complaint from any person of your choice, and no one may instruct you otherwise. Your best interest may be served by seeking legal advice or representation from an  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 a complaint has been filed and served on you and your property has been inspected by a Certified Access Specialist (CASp; see www.dsa.dgs.ca.gov/casp), you may have the right to a court stay (temporary stoppage) and early evaluation conference to evaluate the merits of the construction-related accessibility claim against you pursuant to Civil Code Section 55.54. At your option, you may be, but need not be, represented by an attorney to file a reply and to file an application for a court stay and early evaluation conference. If you choose not to hire an attorney to represent you, you may obtain additional information about how to represent yourself and how to file a reply without hiring an attorney through the Judicial Council Internet Web site at http://www.courtinfo.ca.gov/selfhelp/. You may also obtain a form to file your reply to the lawsuit, as well as the form and information for filing an application to request the court stay and early evaluation conference at that same Web site. 
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. You may wish to consult an attorney to obtain legal advice. You may also wish to 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 for maintaining and improving some or all of the areas you lease. If you choose to hire an attorney to represent you, the attorney who sent you the demand for money or complaint is prohibited from contacting you further unless your attorney has given the other attorney permission to contact you. If the other attorney does try to contact you, you should immediately notify your attorney.  

(B) (c)  On or before July 1, 2016, 2009,  the Judicial Council shall update the advisory  adopt a  form that may be used by an attorney  attorneys  to comply with the requirements of subparagraph (A). subdivision (b).  The advisory  form shall be in substantially the same format and include all of the text set forth in subparagraph (A). subdivision (b).  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  may be  located. The advisory  form shall include Internet Web site information for the Division of the State Architect and  and, when operational,  the California Commission on Disability Access.
(2) A verified 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’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.
(II) Any other affirmative defense the defendant wishes to assert.
(iii) A request to meet in person at the subject premises, if the defendant qualifies for an early evaluation conference pursuant to Section 55.54.
(iv) Any other information that the defendant believes is relevant to his or her potential liability or damages, including that the defendant qualifies for reduced damages pursuant to paragraph (1) or (2) of subdivision (f) of Section 55.56, and, if so, any facts supporting that assertion.
(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) (d)  Subdivision (b) applies  shall apply  only to a demand letter  for money  or complaint made by an attorney. This section does not  Nothing in this section is intended to  affect the right to file a civil complaint under any other law or regulation protecting the physical access rights of persons with disabilities. Additionally, nothing in  this section does not require  requires  a party acting in propria persona  to provide or send a demand letter  for money  to another party before proceeding against that party with a civil complaint.
(d) (e)  This section does shall  not apply to an any  action brought by the Attorney General General,  or by  any district attorney, city attorney, or county counsel.