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AB-1615 Gender discrimination: civil actions. (2017-2018)

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Date Published: 04/07/2017 04:00 AM
AB1615:v98#DOCUMENT

Amended  IN  Assembly  April 06, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1615


Introduced by Assembly Member Eduardo Garcia

February 17, 2017


An act to add Part 2.55 (commencing with Section 55.61) to Division 1 of the Civil Code, and to add Section 425.56 to the Code of Civil Procedure, relating to gender discrimination.


LEGISLATIVE COUNSEL'S DIGEST


AB 1615, as amended, Eduardo Garcia. Gender discrimination: civil actions.
Existing state and federal law prohibit discrimination based on sex. Existing state law, the Unruh Civil Rights Act, commonly referred to as the Unruh Act, prohibits discrimination on a variety of personal characteristics including sex and defines sex to include pregnancy and childbirth. The act provides that sex includes gender and that gender is sex, and that gender includes gender identity and gender expression. Existing law prohibits a business from boycotting or discriminating, among other actions, based on a characteristic protected by the Unruh Act. Existing law prescribes remedies for violations of these prohibitions, which include actual damages, any amount determined by a jury or a court up to a maximum of 3 times the amount of actual damages but in no case less than $4,000, and attorney’s fees to be determined by the court.

Existing law, the Construction-Related Accessibility Standards Compliance Act, 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. The act grants a defendant or potential defendant a stay and an early evaluation conference in regard to the demand or complaint in specified instances. Existing law also authorizes a reduction in potential statutory damages for a small business, as defined, for a construction-related accessibility claim.

This bill would enact the Small Business Gender Discrimination Compliance Act, which would apply to any gender discrimination claim, including, but not limited to, an alleged price difference charged based on gender. Generally, the bill would define a small business as one that has employed 25 or fewer employees on average over the past three years and has averaged annual gross receipts of less than $3,500,000 over those years.

The bill would require an attorney who causes service of a summons and complaint in an action that includes a gender discrimination claim to serve a separate copy of a specified application form and a specified notice to the defendant with the summons and complaint. The bill would require an attorney who appears as counsel for a plaintiff who, representing himself or herself, had previously filed a complaint, to also provide these documents. The bill would permit a small business defendant to file a request for a stay and early evaluation conference in connections with the claim and, if timely filed, the period for filing a response would be tolled. The bill would prescribe requirements for an application for an early evaluation conference and stay by a small business defendant, to include a signed declaration that all alleged gender discrimination violations giving rise to the claim have been corrected.

The bill would require, upon the filing described above, that a court issue an order that, among other things, grants a 90-day stay of proceedings regarding the gender discrimination claim, schedules a mandatory early evaluation conference, as specified, and directs the parties to appear in person to negotiate and enter into a settlement. The order would also require a plaintiff to file with a court and serve on the defendant, as specified, an itemized list of claims, damages, attorney’s fees and costs, and the demand for settlement, if any. The bill would prescribe the circumstances pursuant to which a court would lift a stay. The bill would limit how evidence from the conference would be used in a subsequent proceeding. The bill would require that evaluation conferences be conducted by a superior court judge or commissioner or a court early evaluation conference officer, as defined. The bill would require the Judicial Council, among other things, by January 1, 2018, to prepare and post on its Internet Web site instructions and a form for use by a small business defendant in this regard. The bill would prescribe requirements for provisional application forms until those forms are adopted. The bill would provide that its provisions do not apply to actions brought by specified public prosecutors.

The bill would permit a defendant who does not qualify for an early evaluation conference for a small business defendant as described above, or who forgoes those provisions, to request a mandatory evaluation conference.  The bill would permit a plaintiff, if the defendant does not make this request in responsive pleadings, to request a mandatory evaluation conference. The bill would prescribe procedural requirements in this regard. The bill would require a court to schedule a mandatory evaluation conference within specified times. The bill would prescribe requirements for the court’s notice of conference. The bill would limit how evidence from the conference would be used in a subsequent proceeding. The bill would generally reproduce other provisions connected with the early evaluation conferences described above, including prescribing various duties for Judicial Council and exempting from the bill’s provisions actions brought by public prosecutors.

The bill would authorize a court, with regard to an award of attorney’s fees and costs in a gender discrimination claim, to consider settlement offers made and rejected by the parties without regard to te evidentiary limitations connected to conferences described above. The bill, for unintentional violations, would reduce a small business defendant’s liability for statutory damages in a gender discrimination claim to a minimum of $1,000 for each offense if the defendant has corrected all gender discrimination violations that are the basis for the claim within 30 days of being served, and to a minimum of $2,000 for each offense if the violation is corrected with 60 days.

(2)Existing law requires specified information to be included in the filing of a complaint related to a construction-related accessibility claim if the complaint is filed by or on behalf of a high-frequency litigant. Existing law defines a high frequency litigant for these purposes. Existing law provides for an additional fee of $1,000 to be paid upon the filing of a complaint containing an allegation of a construction-related accessibility claim by a high frequency litigant.

This bill would create a definition of a high-frequency litigant in connection with gender discrimination claims. The bill would make a statement of legislative findings in this regard.

Existing law, the Gender Tax Repeal Act of 1995, prohibits a business from discriminating on the basis of a person’s gender with respect to the price charged for services of similar or like kind. That existing law does not prohibit price differences based on the amount of time, difficulty, or cost of providing the services. Existing law requires specified businesses, including tailors, barbers and hair salons, and dry cleaners and laundries providing services to individuals, to post a price list in an area conspicuous to customers and to display a clearly visible sign with specified information pertaining to the prohibition on gender-based pricing discrimination.
Existing law prescribes remedies for violations of these prohibitions, which include actual damages, any amount determined by a jury or a court up to a maximum of 3 times the amount of actual damages but in no case less than $4,000, and attorney’s fees to be determined by the court.
This bill would enact the Small Business Gender Discrimination in Services Compliance Act, and would define a “gender discrimination in pricing services claim” as a civil claim in a civil action with respect to a business establishment, including, but not limited to, a claim brought under the Unruh Civil Rights Act or the Gender Tax Repeal Act of 1995, based on an alleged price difference charged for services of similar or like kind against a person because of the person’s gender.
The bill would require an attorney, with each demand letter or complaint alleging gender discrimination in pricing services, to provide the defendant or potential defendant with a copy of informational materials pertaining to the prohibition against discrimination in pricing of services. The bill would require those materials to include a specified advisory notice to be adopted by the Judicial Council, a verified answer form to be approved by the Judicial Council, and a pamphlet or informational materials to be developed by the Department of Consumer Affairs for use by tailors and businesses providing aftermarket clothing alternations, barbers and hair salons, and dry cleaners and laundries providing services to individuals that explain the business’ rights and obligations under the Gender Tax Repeal Act of 1995.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Part 2.55 (commencing with Section 55.61) is added to Division 1 of the Civil Code, to read:

PART 2.55. Small Business Gender Discrimination In Services Compliance Act

55.61.
 This part shall be known, and may be cited, as the Small Business Gender Discrimination in Services Compliance Act.  Notwithstanding any other law, the provisions of this part shall apply to any gender discrimination claim, including, but not limited to, any claim brought under Section 51 or 51.6.

55.62.
 (a) For purposes of this part, the following definitions apply:
(1) “Gender discrimination in pricing services claim” means any civil claim in a civil action with respect to a business establishment, including, but not limited to, a claim brought under Section 51 or 51.6, based wholly or in part on an alleged price difference charged based on for services of similar or like kind, against a person because of the person’s gender.

(2)“Application for stay and early evaluation conference” means an application to be filed with the court that meets the requirements of subdivision (c) of Section 55.63.

(3)“Small business defendant” means a defendant who is a small business described in subdivision (b) of Section 55.66, and who declares that all violations have been corrected, or will be corrected, within 30 days of being served with the gender discrimination complaint.

(b)Unless otherwise indicated, terms used in this part relating to civil procedure have the same meanings that those terms have in the Code of Civil Procedure.

(2) “Demand letter” means a prelitigation written document that is provided to a business alleging a gender discrimination in pricing services claim and demanding money, whether or not the attorney intends to file a complaint, or eventually files a complaint, in state 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 gender discrimination in pricing services, including, but not limited to, claims brought pursuant to Section 51 or 51.6:
(1) A copy of the written advisory notice as specified in paragraph (1) of subdivision (c). Until the Judicial Council adopts this notice, the attorney shall provide a written statement that replicates the advisory notice described in paragraph (1) of subdivision (c).
(2) A verified answer form as specified in paragraph (2) of subdivision (c).
(3) A copy of the pamphlet or other informational material specified in Section 55.63, after the pamphlet or material is developed by the Department of Consumer Affairs.
(c) (1) On or before January 1, 2019, the Judicial Council shall adopt a written advisory notice that shall be used by a plaintiff’s attorney to comply with the requirements of paragraph (1) of subdivision (b). The advisory notice shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the advisory notice is available in additional languages, and the Judicial Council Internet Web site address where the different versions of the advisory notice are located. The advisory notice shall state the following:
ADVISORY NOTICE TO DEFENDANT
STATE LAW REQUIRES THAT YOU GET THIS IMPORTANT ADVISORY INFORMATION FOR BUSINESSES
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 you have discriminated, with respect to the price charged for services of similar or like kind, against a person because of that person’s gender.
YOU HAVE IMPORTANT LEGAL OBLIGATIONS. State law requires that businesses charge the same price for the same services, or services of the same or similar kind, regardless of the customer’s gender. In addition, state law requires that certain business establishments clearly and conspicuously disclose to their customers in writing the pricing for each standard service provided. The posting requirement applies to the following businesses:
(1) Tailors or businesses providing aftermarket clothing alterations.
(2) Barbers or hair salons.
(3) Dry cleaners and laundries providing services to individuals.
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 have the right to seek assistance or advice about this demand letter or 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.
ADDITIONAL THINGS YOU SHOULD KNOW
WHEN YOU CAN AND CANNOT CHARGE DIFFERENT PRICES: The Gender Tax Repeal Act of 1995 (California Civil Code Section 51.6) prohibits a business from charging a different price for the same service because of the gender of the person receiving the service. However, you may charge different prices based specifically upon the amount of time, difficulty, or cost of providing the services.
POSTING PRICES: The Gender Tax Repeal Act of 1995 also requires that certain businesses clearly disclose to the customer in writing the price of each standard service provided. This pricing disclosure is required for the following businesses: tailors or businesses providing aftermarket clothing alterations; barbers or hair salons; dry cleaners and laundries providing service to individuals. The price list must be posted in a place where customers will likely see it and it must be in no less than 14-point boldface font. A business must also provide a written copy of the prices to the customer if one is requested by the customer. Finally, a business must clearly and conspicuously display a sign, in no less than 24-point font, that reads:
“CALIFORNIA LAW PROHIBITS ANY BUSINESS ESTABLISHMENT FROM DISCRIMINATING, WITH RESPECT TO THE PRICE CHARGED FOR SERVICES OF SIMILAR OR LIKE KIND, AGAINST A PERSON BECAUSE OF THE PERSON’S GENDER. A COMPLETE PRICE LIST IS AVAILABLE UPON REQUEST.”
RIGHT TO CORRECT A POSTING VIOLATION ONLY: If you receive a written notice claiming that you have failed to properly post any of the above information, you have 30 days to correct the violation. If you fail to correct the violation you will be liable for a civil penalty of $1,000. (Note that the 30-day period to correct applies only to posting violations, not to discriminatory pricing violations.)
(2) A verified answer form shall be approved by the Judicial Council on or before January 1, 2019, that shall be used by the plaintiff’s attorney to comply with paragraph (2) of subdivision (b), on which a defendant may respond to the complaint in the event a complaint is filed. 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:
(A) Specific denials of the allegations in the complaint.
(B) Potential affirmative defenses available to the defendant, including:
(i) That any difference in price was not based on the gender of the customer but on the time, difficulty, or cost of providing the service.
(ii) That the services were not of similar or like kind.
(iii) That the business disclosed a price list and sign in the manner prescribed in subdivision (f) of Section 51.6.
(iv) That the business provided plaintiff with a price list upon request in the manner prescribed in subdivision (f) of Section 51.6.
(v) Any other affirmative defense the defendant wishes to assert.
(3) The verified answer form shall provide instructions to a defendant about how 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.
(4) The Judicial Council shall post the answer form on the Judicial Council Internet Web site.
(d) This section does not apply to an action brought by the Attorney General or any district attorney, city attorney, or county counsel.

55.63.

(a)(1)An attorney who causes a summons and complaint to be served in an action that includes a gender discrimination claim, including, but not limited to, a claim brought under Section 51 or 51.6, 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:

ADVISORY NOTICE TO DEFENDANT

YOU MAY BE ENTITLED TO ASK FOR A COURT STAY (AN ORDER TEMPORARILY STOPPING ANY LAWSUIT) AND EARLY EVALUATION CONFERENCE IN THIS LAWSUIT AND MAY BE ASSESSED REDUCED STATUTORY DAMAGES IF YOU MEET CERTAIN CONDITIONS.

If your business is a small business that, over the previous three years, or the existence of the business if less than three years, employs 25 or fewer employees on average over that time period and meets specified gross receipts criteria, you may be entitled to the court stay and early evaluation conference and your minimum statutory damages for each claim may be reduced to $1,000 for each offense, unless the violation was intentional, and if all the alleged gender discrimination claims are corrected within 30 days of being served with the complaint.

If you plan to correct the violations giving rise to the claim, you should take pictures and document any alleged gender discriminatory items asserted to be the basis for a violation before undertaking any corrective action in case a court needs to see the condition before it was corrected.

The court will schedule the conference to be held within 70 days after you file the attached application form.

The court will also issue an immediate stay of the proceedings.  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 www.courts.ca.gov/selfhelp-start.htm.

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 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 www.courts.ca.gov/selfhelp-start.htm.

You may file the application without the assistance of an attorney, but it may be in your best interest to immediately seek the assistance of an attorney experienced in gender discrimination 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 Section 55.66 of the Civil Code.

(2)An attorney who files a Notice of Substitution of Counsel to appear as counsel for a plaintiff who, acting in propria persona, had previously filed a complaint in an action that includes a gender discrimination claim, including, but not limited to, a claim brought under Section 51 or 51.6, 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 law, upon being served with a summons and complaint asserting a gender discrimination claim, including, but not limited to, a claim brought under Section 51 or 51.6, a small business defendant may file a request for a court stay and early evaluation conference in the proceedings of that claim prior to or simultaneous with that defendant’s responsive pleading or other initial appearance in the action that includes the claim.  If that 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 law, if the plaintiff had acted in propria persona in filing a complaint that includes a gender discrimination claim, including, but not limited to, a claim brought under Section 51 or 51.6, a small business 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 by a small business defendant shall include:

(A)A signed declaration stating that the defendant is a small business that employs 25 or fewer employees and meets the gross receipts eligibility criteria provided in paragraph (1) of subdivision (b) of Section 55.66 and that all alleged gender discrimination violations giving rise to the claim have been corrected, or will be corrected, within 30 days of the complaint being served upon the defendant.

(B)Evidence that shows correction of all violations within 30 days of the service of the complaint and that was served upon the plaintiff with the reply unless the application is filed prior to completion of the corrections.  In that event, the evidence shall be provided to the court and served upon the plaintiff within 10 days of the court order as provided in paragraph (4) of subdivision (d).  This paragraph shall not be construed to extend the permissible time under subdivision (b) of Section 55.66 to make the corrections.

(C)Both of the following, which shall be confidential documents filed only with the court and not served upon or available to the plaintiff:

(i)Proof of the defendant’s number of employees, as shown by wage report forms filed with the Employment Development Department.

(ii)Proof of the defendant’s average gross receipts for the previous three years, or for the existence of the business if less than three years, as shown by a federal or state tax document.

(2)Provisional request and notice forms may be used and filed by a small business defendant until forms are adopted by the Judicial Council for those purposes pursuant to subdivision (i).

(3)Provisional request and notice forms and subsequent 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 small business 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 gender discrimination 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 70 days after issuance of the order, and in no event earlier than 50 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 for good cause to participate in the hearing by telephone or other alternative means or through a representative authorized to settle the case.

(4)Directs a small business defendant who has filed a declaration stating that the violation or violations have been corrected, or will be corrected within 30 days of service of the complaint to file with the court and serve on the plaintiff within 10 days after issuance of the court order evidence of correction of the violation or violations, if that evidence showing correction was not filed previously with the application and served on the plaintiff.

(5)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 the specific claims that are the basis of the claimed violations constituting the basis of the gender discrimination claim 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 a small business defendant has failed to file and serve the evidence showing correction of the violation or violations as required by law.

(3)The court may lift the stay at the conclusion of the early evaluation conference upon a showing of good cause by the plaintiff.  

(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, as applicable:

(1)Whether the defendant is a small business defendant and whether all violations giving rise to the claim have been corrected within the specified time periods.

(2)Whether the case, including any claim for damages or injunctive relief, can be settled in whole or in part.

(3)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)Early evaluation conferences shall be conducted by a superior court judge or commissioner, or a court early evaluation conference officer. For purposes of this subdivision, a “court early evaluation conference officer” means an attorney employed by the court for the purposes of conducting early evaluation conferences. Attorneys serving in this capacity may also be utilized by the court for other purposes not related to these proceedings.

(i)(1)The Judicial Council shall, by January 1, 2018, prepare and post on its Internet Web site instructions and a form for use by a small business defendant to file an application for stay and early evaluation conference as provided in subdivisions (b) and (c), a form for the court’s notice of stay and early evaluation conference, and any other forms appropriate to implement the provisions relating to early evaluation conferences.  Until those forms are adopted, provisional forms that substantially meet the requirements set forth in subdivision (c) may be used.

(2)(A)A provisional application form shall include the following declarations of the defendant as to the basis for the application:

(i)The defendant is a small business described in paragraph (1) of subdivision (b) of Section 55.66.

(ii)The violation or violations giving rise to the claim have been corrected, or will be corrected within 30 days of the complaint being served.

(B)The provisional application shall include a request that the court order the small business defendant to file with the court and serve on the plaintiff evidence showing correction of the violation or violations within 10 calendar days after issuance of the court order, if that evidence showing correction was not filed previously with the application and served on the plaintiff.

(3)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.  The cover pages shall also provide for the party’s declaration of proof of service of the pertinent document served under the court order.

(j)This section shall not apply to any action brought by the Attorney General or by any district attorney, city attorney, or county counsel.

(k)Nothing in this part is intended to affect existing law regarding class action requirements.

55.64.

(a)A defendant who does not qualify for an early evaluation conference pursuant to Section 55.63, or who forgoes the provisions of Section 55.63, may request a mandatory evaluation conference.  A plaintiff may, if the defendant does not make the request with the filing of the responsive pleadings, request a mandatory evaluation conference by filing an application within 15 days of the defendant’s filing of responsive pleadings.

(b)Upon being served with a summons and complaint asserting a gender discrimination claim, including, but not limited to, a claim brought under Section 51 or 51.6, a defendant may file an application for a mandatory evaluation conference in the proceedings of that claim simultaneous with the defendant’s responsive pleading or other initial appearance in the action that includes the claim.  Until the application form for the mandatory evaluation conference is developed by the Judicial Council and posted on its Internet Web site pursuant to subdivision (i), a defendant may request the calendaring of the mandatory evaluation conference in a separate application filed with the defendant’s responsive pleadings.

(c)Upon the filing of a request or application for a mandatory evaluation conference by a defendant or plaintiff, the court shall schedule a mandatory evaluation conference for a date as soon as possible from the date of the request or application, but in no event later than 180 days after the date of request or application, or earlier than 120 days after the filing of the request or application.  Upon mutual stipulation for an extension of the conference date, the mandatory evaluation conference may be extended for up to 30 days.  The court’s notice of conference shall also do all of the following:

(1)Direct 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 for good cause to participate in the hearing by telephone or other alternative means or through a representative authorized to settle the case.

(2)Direct the plaintiff to file with the court and serve on the defendant at least 30 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 the specific claims that are the basis of the claimed violations constituting the basis of the gender discrimination claim 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.

(3)Direct the defendant to file with the court and serve on the plaintiff, at least 30 days before the date of the mandatory evaluation conference, a statement of the defendant detailing any remedial action or remedial correction undertaken, or to be undertaken, by the defendant to correct the alleged violations.

(d)A party failing to comply with any court order is subject to court sanction at the court’s discretion.

(e)All discussions at the mandatory 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)The current condition of the business establishment and the status of any plan of correction, including whether the defendant has corrected, or is willing to correct, the alleged violations, and the timeline for doing so.

(2)Whether the case, including any claim for damages or injunctive relief, can be settled in whole or in part.

(3)Whether the parties should share other information that may facilitate evaluation and resolution of the dispute.

(f)Nothing in this section precludes any party from making an offer to compromise pursuant to Section 998 of the Code of Civil Procedure.

(g)The court may schedule additional conferences.

(h)Mandatory evaluation conferences shall be conducted by a superior court judge or commissioner, or by a court early evaluation conference officer as provided in subdivision (h) of Section 55.63.

(i)(1) The Judicial Council shall prepare and post on its Internet Web site instructions and a form for a party to use to file an application for a mandatory evaluation conference and a form for the court’s notice of the mandatory evaluation conference.  Until those forms are adopted, a party and the court may use an ad hoc form that complies with the requirements of this section.

(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 (c).

(j)The mandatory evaluation conference may, at the court’s discretion, be scheduled or combined with the case management conference within the time period specified in subdivision (c).

(k)This section shall not apply to any action brought by the Attorney General, or by any district attorney, city attorney, or county counsel.

55.65.

Notwithstanding paragraph (5) of subdivision (d) of Section 55.63 or paragraph (2) of subdivision (c) of Section 55.63, in determining an award of reasonable attorney’s fees and recoverable costs with respect to any gender discrimination claim, the court may consider, along with other relevant information, written settlement offers made and rejected by the parties.  Nothing in this section affects or modifies the inadmissibility of evidence regarding offers of compromise pursuant to Section 1152 of the Evidence Code, including, but not limited to, inadmissibility to prove injury or damage.

55.66.

(a)Statutory damages under subdivision (a) of Section 52 may be recovered in a gender discrimination claim based on each particular transaction wherein the plaintiff was discriminated against pursuant to subdivision (a) of Section 51.6 or each particular occasion upon which the plaintiff was exposed to a violation pursuant to subdivision (f) of Section 51.6.

(b)(1)Notwithstanding any other law, a small business defendant’s liability for statutory damages in a gender discrimination claim against a business establishment is reduced to a minimum of one thousand dollars ($1,000) for each offense if the defendant demonstrates both of the following:

(A)The defendant has corrected all gender discrimination violations that are the basis of a claim within 30 days of being served with the complaint.

(B)The defendant is a small business defendant if it has employed 25 or fewer employees on average over the past three years, or for the years it has been in existence if less than three years, as evidenced by wage report forms filed with the Employment Development Department, and has average annual gross receipts of less than three million five hundred thousand dollars ($3,500,000) over the previous three years, or for the years it has been in existence if less than three years, as evidenced by federal or state income tax returns.  The average annual gross receipts dollar amount shall be adjusted biannually by the Department of General Services for changes in the California Consumer Price Index for All Urban Consumers, as compiled by the Department of Industrial Relations.  The Department of General Services shall post that adjusted amount on its Internet Web site.

(2)Notwithstanding any other law, a small business defendant’s liability for statutory damages in a gender discrimination claim against a business establishment is reduced to a minimum of two thousand dollars ($2,000) for each offense if the defendant demonstrates both of the following:

(A)The defendant has corrected all gender discrimination violations that are the basis of a claim within 60 days of being served with the complaint.

(B)The defendant is a small business defendant as defined by paragraph (1) of subdivision (b).

(3)This subdivision shall not be applicable to intentional violations.

(4)Nothing in this subdivision affects the awarding of actual damages, or affects the awarding of treble actual damages.

(c)This section does not alter the applicable law for the awarding of injunctive or other equitable relief for a violation or violations of one or more gender discrimination claims, nor alter any legal obligation of a party to mitigate damages.

(d)In assessing liability under subdivision (a), in any action alleging multiple claims for the same gender discrimination violation on different particular occasions, the court shall consider the reasonableness of the plaintiff’s conduct in light of the plaintiff’s obligation, if any, to mitigate damages.

55.63.
 (a) On or before January 1, 2019, the Department of Consumer Affairs shall develop a pamphlet or other informational materials for use by the following business establishments: tailors and businesses providing aftermarket clothing alterations; barbers and hair salons; and dry cleaners and laundries providing services to individuals. The pamphlet shall explain the business’ rights and obligations under Section 51.6 of the Civil Code in clear and concise language. Specifically, the pamphlet shall explain that the business is prohibited from charging different prices for services of similar or like kind based on the customer’s gender, unless the price difference is based upon the amount of time, difficulty, or cost of providing the services and that the business shall disclose a price list and sign in the manner prescribed in subdivision (f) of Section 51.6. The pamphlet shall explain that a business has 30 days to correct any violation of the posting requirements in subdivision (f), and that a business that fails to correct within 30 days of receiving notice of the violation is liable for a civil penalty of one thousand dollars ($1,000). The department may include any other information that would help the business comply with Section 51.6.
(b) The department shall provide the pamphlet or other informational materials required by subdivision (a) to an affected business establishment at the time that the business establishment applies for or renews a license, at the time of any inspection, or at both times. The department shall post a copy of the pamphlet or other informational materials on its Internet Web site.

SEC. 2.Section 425.56 is added to the Code of Civil Procedure, to read:
425.56.

(a)The Legislature finds and declares all of the following:

(1)Protection of the civil rights between genders is of the utmost importance to this state, and private enforcement is the essential means of achieving that goal, as the law has been designed.

(2)Many gender discrimination claims pursuant to Section 51 or 51.6 of the Civil Code are filed by a few law firms and repeatedly by the same aggrieved party. Therefore, a very small number of plaintiffs have filed a disproportionately large number of the gender discrimination claims in the state. Moreover, these lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the alleged discriminatory practices.

(3)Therefore, given these special and unique circumstances, the provisions of this section are warranted for this limited group of plaintiffs.

(b)For the purposes of this article, “high-frequency litigant” means a person, except as specified in paragraph (3), who utilizes court resources in actions arising from alleged gender discrimination claims pursuant to Section 51 or 51.6 of the Civil Code at such a high level that it is appropriate that additional safeguards apply so as to ensure that the claims are warranted. A “high-frequency litigant” means one or more of the following:

(1)A plaintiff who has filed 10 or more complaints alleging a gender discrimination claim pursuant to Section 51 or 51.6 of the Civil Code within the 12-month period immediately preceding the filing of the current complaint alleging a gender discrimination claim.

(2)An attorney who has represented as attorney of record 10 or more high-frequency litigant plaintiffs in actions that were resolved within the 12-month period immediately preceding the filing of the current complaint alleging a gender discrimination claim pursuant to Section 51 or 51.6 of the Civil Code, excluding all of the following actions:

(A)An action in which an early evaluation conference was held pursuant to Section 55.63 or 55.64 of the Civil Code.

(B)An action in which judgment was entered in favor of the plaintiff.

(C)An action in which the gender discrimination violations alleged in the complaint were remedied in whole or in part, or a favorable result was achieved, after the plaintiff filed a complaint or provided a demand letter.

(3)This section does not apply to an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment to represent a client in asserting a gender discrimination claim, or the client in such a case.