With Disabilities Act
Legislation And Defenses
I. THE UNRUH CIVIL RIGHTS ACT (CIVIL
CODE §51 et seq.)
The Unruh Civil Rights Act (See CC §51(a))
is set forth in California Civil Code §51 et seq. Civil Code
§52 provides for actions for damages and other remedies for
violation of the Unruh Act and certain other statutes prohibiting
The Unruh Act provides that all persons
within the jurisdiction of California are free and equal, and no
matter what their sex, race, color, religion, ancestry, national
origin, disability, medical condition, marital status, or sexual
orientation are entitled to the full and equal accommodations, advantages,
facilities, privileges, or services in all business establishments
of every kind whatsoever [CC §51(b)]. Moreover, a violation
of these rights of any individual under the federal Americans With
Disabilities Act of 1990 (ADA) also constitutes a violation of the
Unruh Act [CC §51(f)].
Purpose of the Act
The primary purpose of the Act is to
compel recognition of the equality of all persons in the right to
the particular service offered by an organization or entity covered
by the Act. [See Curran v. Mount Diablo Council of the Boy Scouts
(1983) 147 Cal. App. 3d 712, 733, on review after remand, 17 Cal.
4th 670, (1998) (Boy Scouts not subject to Act for purposes of membership
Thus, the Unruh Act prohibits all arbitrary
discrimination by business establishments [See In re Cox (1970)
3 Cal. 3d 205, 216]. Arbitrary discrimination is not limited to
exclusionary practices by businesses, but encompasses all forms
of unequal treatment of patrons [See Koire v. Metro Car Wash (1985)
40 Cal. 3d 24, 29.] The prohibition of all types of arbitrary discrimination
precludes discriminatory treatment based on generalizations about
the class to which a person belongs. Further, an exclusionary practice
cannot be justified only on the ground that the presence of a class
of persons does not accord with the nature of the organization or
its facilities [See Curran v. Mount Diablo Council of the Boy Scout]
Specific Acts of Individual
In deciding whether a violation of the
Act has occurred, the overriding issue is always whether the denial
of equal treatment is on an unjustified ground [See Wynn v. Monterey
Club (1980) 111 Cal. App. 3d 789, 797]. A person may not be discriminated
against because of his or her status as a member of a particular
class. Discriminatory treatment is not prohibited by the Act, however,
if it is reasonably based on the individual conduct of the person
[See Hubert v. Williams (1982) 184 Cal. Rptr. 161].
Plaintiff Need Not Be Customer
A Plaintiff need not necessarily be
a customer of a business establishment to bring an action against
that establishment for discrimination in violation of the Unruh
Act. In one case, the Plaintiff, an African-American investment
advisor, recommended that two elderly clients invest in a particular
mutual fund. He accompanied them to the Defendant bank to facilitate
the transaction. An employee of the bank, allegedly because of her
prejudice against African Americans, told the Plaintiff's clients
that the Plaintiff was trying to "pull a scam" on them
and urged them not to undertake the transaction. As a result, the
clients left the bank and did not go through with the transaction.
The Court of Appeal held that the Plaintiff stated a cause of action
noting that the bank accommodated the public in many ways peripheral
to its main functions of providing banking services, including allowing
persons to accompany its customers and help them pursue their banking
business. The Court held that when the bank refuses an African American
this courtesy because of his or her race, the bank is denying that
person the full and equal accommodations, privileges, or services
of the bank, in violation of the Act [See Jackson v. Superior Court
(1994) 30 Cal. App. 4th 936, 940-941] .
A person must tender the purchase price
for a business's services or products to have standing to sue it
under the Unruh Civil Rights Act for alleged discriminatory practices
relating to it [See Surrey v. TrueBeginnings, LLC (2008) 168 Cal.
App. 4th 414, 417-420] .
Single Instance of Discrimination
The Unruh Act prohibitions are not limited
to discriminatory acts that are routinely committed, or to discriminatory
acts that are a matter of policy. Although Plaintiff's burden of
persuasion may be easier if he or she can provide evidence that
the Defendant routinely discriminates against the class to which
Plaintiff belongs, liability under the Act may be established by
pleading and proving a single violation [See Jackson v. Superior
II. THE CALIFORNIA DISABLED
PERSONS ACT (Civil Code §§54 and 54.1)
Individuals with disabilities or medical
conditions have the same right as the general public to the full
and free use of streets, highways, sidewalks, walkways, public buildings,
medical facilities, including hospitals, clinics, and physicians'
offices, public facilities, and other public places [CC §54(a)].
A violation of the right of an individual under the Americans with
Disabilities Act of 1990 (ADA) also constitutes a violation of this
section. [CC §54(c) ]
Moreover, individuals with disabilities
are entitled to as full and equal access as other members of the
general public to accommodations, advantages, facilities, medical
facilities, including hospitals, clinics, and physicians' offices,
and privileges of all common carriers, airplanes, motor vehicles,
railroad trains, motorbuses, streetcars, boats, or any other public
conveyances or modes of transportation (whether private, public,
franchised, licensed, contracted, or otherwise provided), and to
telephone facilities, adoption agencies, private schools, hotels,
lodging places, places of public accommodation, amusement, or resort,
and other places to which the general public is invited, subject
only to the conditions and limitations established by law, or by
state or federal regulation, and applicable alike to all persons
[CC §54.1(a)(1)] . However, violation of regulations designed
to ensure access may not necessarily confer standing on a disabled
Plaintiff, if the regulations were not intended to prevent the type
of injury suffered by the Plaintiff [See Urhausen v. Longs Drug
Stores California, Inc. (2007) 155 Cal. App. 4th 254, 261-266 (although
disabled, Plaintiff had no standing under CC §54.1 based on
Defendant's violation of disabled access regulations governing slope
of parking spaces, where regulations were not intended to prevent
type of accident Plaintiff suffered)].
A violation of CC §54.1(a) does
not require a showing of intent [Hankins v. El Torito Restaurants
(1998) 63 Cal. App. 4th 510, 520 n.4; Donald v. Cafe Royale (1990)
218 Cal. App. 3d 168, 178-180].
Violation of a disability access standard
is not a prerequisite for imposing liability under CC §54.1.
The public accommodation law applies to policies as well as to structural
impediments. Thus, CC §54.1 is violated by policies, not otherwise
compelled by law, that deny disabled individuals full and fair access
to public accommodations [Hankins v. El Torito Restaurants (trial
court finding that restaurant was in compliance with relevant structural
access standards did not preclude finding of violation of CC §54.1(a)].
Any person or persons, firm, or corporation
who denies or interferes with admittance to or enjoyment of public
facilities as specified in CC §§54 and 54.1, or who otherwise
interferes with the rights of an individual with a disability under
CC §§54, 54.1, and 54.2, is liable for each offense for
the actual damages suffered [See CC §54.3(a) (also defining
"interfere" as including preventing or causing prevention
of guide, signal, or service dog from carrying out its functions
in assisting disabled person)]. In addition to actual damages, the
person or entity engaging in the discrimination is subject to liability
in an amount that may be determined by a jury or by the Court sitting
without a jury, up to a maximum of three times the amount of actual
damages, but in no case less than $1,000 [See CC §54.3(a)].
Even when no actual damages have been sustained, if there has been
a denial of equal access, the minimum statutory damages are available,
regardless of the Defendant's intent [Donald v. Cafe Royale (1990)
218 Cal. App. 3d 168, 177]. Attorney's fees in an amount determined
by the court are also available [See CC §54.3(a)].
The remedies provided by CC §54.3
are nonexclusive, and are in addition to any other remedy provided
by law, including, but not limited to, any action for injunctive
or other equitable relief available to the aggrieved party or brought
in the name of the people of California or the United States [See
CC §54.3(b)]. However, a person may not be held liable
for damages under both §54.3 and §52 for the same act
or failure to act [See CC §54.3(c)].
There is no federal-question jurisdiction
over an action for damages under CC §54.1, even though CC §54.1(d)
makes a violation of the federal Americans with Disabilities Act
(ADA) a violation of state law (ie. Unruh Act and California Disabled
Person Act.) Congress intended that there be no federal cause of
action for damages for a violation of Title III of the ADA. To exercise
federal-question jurisdiction in these circumstances would circumvent
the intent of Congress [See Wander v. Kaus (9th Cir. 2002) 304 F.3d
856 and Pickern v. Best Western Timber Cove Lodge Marina Resort
(E.D. Cal. 2002) 194 F. Supp. 2d 1128, 1131-1133].
III. FEDERAL AMERICAN’S
WITH DISABILITIES ACT (42 U.S.C. §12181 et seq.)
The Americans With Disabilities Act
of 1990 (ADA) is a clear and comprehensive national mandate for
the elimination of discrimination against individuals with disabilities
[See 42 U.S.C. §12101(b)(1)]. It prohibits discrimination against
persons with disabilities in all of the following areas:
1. Employment [See 42 U.S.C. §12111
et seq. (Title I of the ADA)];
2. Public services and transportation
[See 42 U.S.C. §12131 et seq. (Title II of the ADA)];
accommodations [See 42 U.S.C. §12181 et seq. (Title III of
the ADA)]; and
4. Telecommunications [See 47 U.S.C.
Compensatory damages are recoverable
under the ADA only on proof of discriminatory intent [See Ferguson
v. City of Phoenix (1998) 157 F.3d 668, 673-676, cert. denied, 526
U.S. 1159 (1999) (remedies for violations of ADA must be construed
as remedies under Title VI of Civil Rights Act of 1964, and in absence
of proof of discriminatory intent, compensatory relief should not
be allowed under Title VI, citing Guardians Ass'n v. Civil Service
Comm'n of the City of New York (1983) 463 U.S. 582, 103 S. Ct. 3221,
77 L. Ed. 2d 866 )].
The ADA prohibits retaliation against
any individual for opposing any unlawful practice or because he
or she has made a charge or participated in an investigation or
proceeding under the ADA. It also prohibits coercion, intimidation,
threats, or interference with any person's rights under the ADA
[42 U.S.C. §12203]. Nothing in the ADA may be construed to
require an individual with a disability to accept an accommodation,
aid, service, opportunity, or benefit that that individual chooses
not to accept [42 U.S.C. §12201(d)]. The prevailing party in
a proceeding under the ADA may be awarded attorney's fees [See 42
U.S.C. §12205], unless the Defendant voluntarily changes its
conduct before Plaintiff obtains judicial relief [See Buckhannon
Board & Care Home, Inc. v. West Virginia Dep't of Health &
Human Resources (2001) 532 U.S. 598].
Plaintiff Must Have Standing
A Plaintiff must have constitutional
standing under U.S. Const. Art. III to bring an action under the
Americans with Disabilities Act. Constitutional standing has three
1. The Plaintiff must have suffered
an injury in fact that is concrete, particularized, and actual or
2. There must be a causal link between
the injury and the conduct of which the plaintiff complains.
3. It must be likely that a favorable
decision will redress the plaintiff's injury.
An ADA Plaintiff has suffered an injury
in fact sufficient to give that Plaintiff standing to challenge
barriers in a public accommodation under the ADA when the Plaintiff
has actually encountered those barriers [See D'Lil v. Best Western
Encina Lodge & Suites (9th Cir. 2008) 538 F.3d 1031, 1036; Skaff
v. Meridien North America Beverly Hills (9th Cir. 2007) 506 F.3d
832, 838; Pickern v. Holiday Quality Foods Inc. (9th Cir. 2002)
293 F.3d 1133, 1138-39]. Thus, a Plaintiff who has suffered an injury
in fact that is concrete, particularized, actual, and imminent has
constitutional standing under U.S. Const. Art. III to bring suit
challenging accessibility barriers under Title III of the Americans
with Disabilities Act [See Doran v. 7-Eleven, Inc. (9th Cir. 2007)
506 F.3d 1191, 1195-1196]. An ADA Plaintiff who has Art. III standing
as a result of at least one barrier at a place of public accommodation
may, in one suit, permissibly challenge all barriers in that public
accommodation that are related to his or her specific disability
[Doran v. 7-Eleven, Inc. (9th Cir. 2007) 506 F.3d 1191, 1197-1202
The ADA does not require either, that
Plaintiffs give Defendants pre-suit notice that they intend to sue,
or that Plaintiffs give Defendants an opportunity to cure the alleged
violation or violations before filing suit as a prerequisite to
recovering attorneys' fees [See Skaff v. Meridien North America
Beverly Hills ].
Public Accommodations and Services
Offered by Private Entities
Title III of the ADA, 42 U.S.C. §§12181-12189,
governs public accommodations and services operated by private entities.
The protections provided by Title III of the ADA to individuals
with disabilities are significant and broad in scope. The ADA prohibits
discrimination against an individual on the basis of disability
in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or
operates a place of public accommodation [42 U.S.C. §12182(a)].
The ADA's general prohibition of discriminatory
denial of the opportunity to participate in or benefit from goods,
services, facilities, privileges, advantages, or accommodations
of an entity [42 U.S.C. §12182(b)(1)(A)(i)] has been interpreted
broadly. Title III of the ADA prohibits places of public accommodation
from discriminating against disabled persons by, among other things,
failing to remove architectural barriers to their businesses or,
if removal is not readily achievable, using alternative methods
for providing disabled persons with access to their goods, services,
and facilities [See Snyder v. San Diego Flowers (S.D. Cal. 1998)
21 F. Supp. 2d 1207, 1208; see 42 U.S.C. §12182(a),(b)]. A
Plaintiff who is disabled within the meaning of the ADA and who
has actual knowledge of illegal barriers at a public accommodation
to which he or she desires access need not engage in the futile
gesture of attempting to gain access in order to show actual injury
during the limitations period. A Plaintiff who seeks injunctive
relief against an ongoing violation is not barred from seeking relief
either by the statute of limitations or by lack of standing [See
Pickern v. Holiday Quality Foods Inc. (9th Cir. 2002) 293 F.3d 1133,
The ADA defines public accommodation
to include numerous types of private entities for which the word
"public" reflects the entity's use in commerce, not its
ownership [42 U.S.C. §12181(7)]. The ADA applies to establishments
that fall within any of 12 categories [42 U.S.C. §12181(7);
28 C.F.R. §36, appen. B (2008) and gives the following examples
of private entities considered public accommodations, if the operations
of the entities affect commerce [42 U.S.C. §12181(7)]:
|1. Places of lodging
||An inn, hotel, motel, or other place of lodging,
except for an establishment located within a building that contains
not more than five rooms for rent or hire and that is actually
occupied by the proprietor of the establishment as the residence
of the proprietor.
|2. Establishments serving food or drink
||A restaurant, bar, or other establishment serving
food or drink.
|3. Places of exhibition or entertainment
||A motion picture house, theater, concert hall,
stadium, or other place of exhibition or entertainment.
|4. Places of public gathering
||An auditorium, convention center, lecture hall,
or other place of public gathering.
|5. Sales or rental establishments
||A bakery, grocery store, clothing store, hardware
store, shopping center, or other sales or rental establishment.
|6. Service establishments
||A Laundromat, dry-cleaner, bank, barber shop, beauty
shop, travel service, shoe repair service, funeral parlor, gas
station, office of an accountant or lawyer, pharmacy, insurance
office, professional office of a health care provider, hospital,
or other service establishment.
|7. Stations used for specified public transportation
||A terminal, depot, or other station used for specified
|8. Places of public display or collection
||A museum, library, gallery, or other place of public
display or collection. Park, zoo, amusement park, or other place
|9. Places of recreation
||A park, zoo, amusement park, or other place of
|10. Places of education
||A nursery, elementary, secondary, undergraduate,
or postgraduate private school, or other place of education.
|11. Social service center establishments
||A day care center, senior citizen center, homeless
shelter, food bank, adoption agency, or other social service
|12. Places of exercise or recreation
||A gymnasium, health spa, bowling alley, golf course,
or other place of exercise or recreation.
Although the 12 categories
of public accommodations listed in the ADA are exclusive, the illustrative
examples for each category shown hereinabove are not. Within each
category only a few examples are given. In deciding whether an establishment
is a public accommodation even in the absence of an express designation,
Courts ask whether its inclusion furthers the ADA's purpose [See
Nicholls v. Holiday Panay Marina, L.P. (2009) 173 Cal. App. 4th
966, 970-971, (identifying private marina as included rental establishment
subject to ADA furthered ADA's purpose)].
A "private club" is exempt
under the ADA [42 U.S.C. §12181(7)]. Features that tend to
make an organization a private club include the following:
Selectivity in membership; Restriction
of nonmembers' use of facilities; The degree of member control of
the organization's operations; The purpose of the organization's
existence; Advertisement to the public; Substantial membership fees;
The organization's profit or nonprofit status.
IV. DEFENSES TO CLAIMS OF ADA
VIOLATIONS IN CALIFORNIA
Limitations on the Unruh Act
The Unruh Act will not be construed
to confer any right or privilege on a person that is conditioned
or limited by law or that is applicable alike to persons of every
sex, color, race, religion, ancestry, national origin, disability,
medical condition, marital status, or sexual orientation [CC §51(c);
See Beaty v. Truck Ins. Exchange (1992) 6 Cal. App. 4th 1455, 1463
(Act not intended to create right of insurance so long as insurer's
policy is applicable alike to all persons)].
What the Act proscribes is any form
of arbitrary discrimination. Certain types of discrimination have
been denominated reasonable and, therefore, not arbitrary. Thus,
a business establishment need not tolerate customers who damage
property, injure others, or otherwise disrupt business [Koire v.
Metro Car Wash (1985) 40 Cal. 3d 24, 30]. Additionally, a business
establishment may promulgate reasonable deportment rules that are
rationally related to the services performed and the facilities
provided [In re Cox (1970) 3 Cal. 3d 205, 217; see Gatto v. County
of Sonoma (2002) 98 Cal. App. 4th 744, 765-769, (county fair's enforcement
of dress code to require patron to remove vest bearing insignia
of Hell's Angels Motorcycle Club did not violate right to full and
equal accommodations under Unruh Act); Hessians Motorcycle Club
v. J.C. Flanagans (2001) 86 Cal. App. 4th 833, (refusing entry to
sports bar of motorcyclists wearing indicia of membership in particular
motorcycle club did not violate Unruh Act as rationally related
to prevention of barroom brawls between members of rival gangs)].
Building Repairs or Modifications
(The Grandfather Clause)
Nothing in the Unruh Act requires any
construction, alteration, repair (structural or otherwise), or modification
of any sort whatsoever, beyond construction, alteration, repair,
or modification that is otherwise required by other provisions of
law, to any new or existing establishment, facility, building, improvement,
or any other structure [CC §51(d)].
Other California Statutes Containing
a Grandfather Clause:
CC §51.5. Discrimination
by business establishment prohibited
(a) No business establishment
of any kind whatsoever shall discriminate against, boycott or blacklist,
or refuse to buy from, contract with, sell to, or trade with any
person in this state on account of any characteristic listed or
defined in subdivision (b) or (e) of Section 51, or of the person's
partners, members, stockholders, directors, officers, managers,
superintendents, agents, employees, business associates, suppliers,
or customers, because the person is perceived to have one or more
of those characteristics, or because the person is associated with
a person who has, or is perceived to have, any of those characteristics.
(b) As used in this
section, "person" includes any person, firm, association,
organization, partnership, business trust, corporation, limited
liability company, or company
(c) This section
shall not be construed to require any construction, alteration,
repair, structural or otherwise, or modification of any sort whatsoever,
beyond that construction, alteration, repair, or modification that
is otherwise required by other provisions of law, to any new or
existing establishment, facility, building, improvement, or any
other structure, nor shall this section be construed to augment,
restrict, or alter in any way the authority of the State Architect
to require construction, alteration, repair, or modifications that
the State Architect otherwise possesses pursuant to other laws.
Cal Gov Code §4456. Compliance
by pre-1968 buildings when alterations and repairs are made
After the effective date of this section,
any building or facility which would have been subject to this chapter
but for the fact it was constructed prior to November 13,
1968, shall comply with the provisions of this chapter
when alterations, structural repairs or additions are made
to such building or facility. This requirement shall only
apply to the area of specific alteration, structural repair or addition
and shall not be construed to mean that the entire structure or
facility is subject to this chapter.
Cal Health & Safety Code
§ 19959. Public accommodations constructed before
July 1, 1970
Every existing public accommodation
constructed prior to July 1, 1970, which is not
exempted by Section 19956, shall be subject to the requirements
of this chapter when any alterations, structural repairs or additions
are made to such public accommodation. This requirement
shall only apply to the area of specific alteration, structural
repair or addition and shall not be construed to mean that
the entire building or facility is subject to this chapter.
Reasonable Business Exceptions;
Reasonable Deportment Rules:
Pursuant to the "nature-of-the-business"
exception, a business may promulgate reasonable deportment rules
that are rationally related to the nature of the business enterprise
and the facilities provided. This exception is an acknowledgment
that certain behavior may be appropriate in one setting, but inappropriate
in another. Its application is very limited, and the few cases that
have held discriminatory treatment to be non-arbitrary based solely
on the nature of the business have emphasized the special nature
of the business. [See Koire v. Metro Car Wash (1985) 40 Cal. 3d
24, 30-31]. Indeed, the exception was inapplicable when invoked
by the owners of an ordinary apartment complex as a rationale to
exclude children [See Marina Point, Ltd. v. Wolfson (1982) 30 Cal.
3d 721, 741].
Customers with Improper or Disruptive
A business establishment need not tolerate
customers who damage property, injure others, or otherwise disrupt
business [See Koire v. Metro Car Wash]. Additionally, a business
establishment may promulgate reasonable deportment rules that are
rationally related to the services performed and the facilities
provided [In re Cox (1970) 3 Cal. 3d 205, 217].
Nothing in the Unruh Act prohibits the
exclusion of an entire class whose presence would not accord with
the nature of the business enterprise and its facilities. Indeed,
limitation of access to members of certain groups may operate in
certain cases as a reasonable and permissible means of establishing
and preserving specialized facilities for those particularly in
need of those services or that environment. The social need served
by such a specialized institution, however, must be well documented
and established as a matter of public policy. The case for specialization
is strengthened if the facility was designed to satisfy the particular
concerns and characteristics of the needy group, making it less
suitable for general use [Marina Point, Ltd. v. Wolfson].
In Marina Point, Ltd. v. Wolfson, the
California Supreme Court first articulated this specialized-facility
exception to the Act. The Court discussed the exception in terms
of housing facilities reserved for older persons, emphasizing seniors'
special concerns with the physical facilities and the requirement
that the facilities be easily accessible, as well as seniors' special
social and psychological needs and their financial limitations.
A specialized institution designed to meet a special need is fundamentally
different from a facility suitable for the general public that seeks
to exclude a class based on no particular need.
Public Policy Exception
Absent a compelling public social policy
supporting differential treatment, discriminatory treatment violates
the Unruh Act [See Koire v. Metro Car Wash]. "Public policy"
exceptions to the Act are rare and are based on a "compelling
societal interest" as reflected in statutory enactments.
For example, it is permissible to exclude
children from bars or adult bookstores, because it is illegal to
serve alcoholic beverages or to distribute harmful matter to minors.
This sort of discrimination is not arbitrary and therefore not prohibited
by the Act. The fundamental purpose of the Unruh Act is the elimination
of antisocial discriminatory practices--not the elimination of socially
beneficial ones [Sargoy v. Resolution Trust Corp. (1992) 8 Cal.
App. 4th 1039, 1049, (court recognized that not upholding preferential
treatment for seniors could place in jeopardy discounts and benefits
accorded seniors, thereby profoundly impacting their quality of
ADDITIONAL RESOURCES AVAILABLE
[THE CONSTRUCTION-RELATED ACCESSIBILITY
STANDARDS COMPLIANCE ACT CIVIL CODE §55.1, et seq.]
The Construction-Related Accessibility
Standards Compliance Act [CC §55.51 et seq.], applies
to any construction-related accessibility claim, including, but
not limited to, any claim brought under CC §§51, 54, 54.1,
or 55 [See CC §55.51]. It applies only to claims filed on or
after January 1, 2009.
For these purposes, a "construction-related
accessibility claim" is any civil claim in a civil action with
respect to a place of public accommodation, based wholly or in part
on an alleged violation of any construction-related accessibility
standard [CC §55.52(1)]. A "construction-related accessibility
standard" is a provision, standard, or regulation under state
or federal law requiring compliance with standards for making new
construction and existing facilities accessible to persons with
disabilities, including, but not limited to, any such provision,
standard, or regulation set forth in CC §§51, 54, 54.1,
or 55, Health & Safety Code §19955.5, the California Building
Standards Code [Title 24 of Cal. Code Reg.], the Americans with
Disabilities Act of 1990 [42 U.S.C. §12101 et seq.], and the
Americans with Disabilities Act Accessibility Guidelines [See CC
§55.52(6); see 28 C.F.R. Part 36, Appendix A].
A "certified access specialist"
or "CASp" is any person who has been certified pursuant
to Gov. Code §4459.5 [CC §55.52(3)]. "CASp-inspected"
means the site was inspected by a CASp and determined to meet all
applicable construction-related accessibility standards. "CASp
determination pending" means the site was inspected by a CASp
and is pending a determination by the CASp that the site meets applicable
construction-related accessibility standards.
A "Qualified Defendant" is
a Defendant in an action that includes a construction-related accessibility
claim asserted against a place of public accommodation meeting the
requirements of "CASp-inspected" or "CASp determination
pending" prior to the date the Defendant was served with the
summons and complaint in that action. To be a Qualified Defendant,
the Defendant is not required to have been the party who hired a
CASp, so long as the basis of the alleged liability of the Defendant
is a construction-related accessibility claim. A "construction-related
accessibility claim" is a claim of a violation of any construction-related
accessibility standard with respect to a place of public accommodation.
An attorney who causes a summons and
complaint to be served in an action that includes a construction-related
accessibility claim must, at the same time, cause to be served a
copy of the application form [See CC §55.54(c)], and a NOTICE
TO DEFENDANT on separate papers that shall be served with the summons
and complaint [See CC §55.54(a)(1)] The advisory requirement
applies only to a demand for money or complaint made by an attorney,
and nothing in CC §55.3 are 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. Nothing
in CC §55.3 requires a party acting in propria persona to provide
or send a demand for money to another party before proceeding against
that party with a civil complaint [CC §55.3(d)]. CC §55.3
does not apply to any action brought by the Attorney General, or
by a district attorney, city attorney, or county counsel.
Upon being served with a summons and
complaint asserting a construction-related accessibility claim,
a Qualified Defendant may file a request for a Court Stay and Early
Evaluation Conference prior to or simultaneous with the Defendant's
responsive pleading or other initial appearance in the action that
includes the claim. If the Defendant filed a timely request for
stay and early evaluation conference before a responsive pleading
was due, the period for filing a responsive pleading will 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 will
be tolled until the stay is lifted [See CC §55.54(b)(1)].
An application for an Early Evaluation
Conference and Stay must include a signed declaration that declares
both that 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;
and that an inspection report pertaining to the site has been issued
by a CASp. The inspection report must be provided to the Court and
the Plaintiff at least 15 days prior to the Court date set for the
Early Evaluation Conference [See CC §55.54(c)(1)].
Upon the filing of an Application for
Stay and Early Evaluation Conference by a Qualified Defendant, the
court must 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 [See CC
2. Schedule 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
[See CC §55.54(d)(2)].
3. 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. The court
may allow a party who is unable to attend in person due to a disability
to participate in the hearing by telephone or other alternative
means or through a representative authorized to settle the case
[See CC §55.54(d)(3)].
4. Direct the Defendant to file with
the Court under seal and serve on the Plaintiff a copy of any relevant
CASp inspection report at least 15 days before the date of the conference,
which is subject to a protective court order maintaining the confidentiality
of the report [See CC §55.54(d)(4)].
5. Direct 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:
1. 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
2. The amount of damages claimed;
3. The amount of attorneys' fees and
costs incurred to date, if any, that are being claimed;
4. Any demand for settlement of the
case in its entirety.
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 [CC §55.54(h)].
The Legislature stated its intent that
the purpose of the Early Evaluation Conference includes, but is
not to 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
4. Whether the parties should share
other information that may facilitate early evaluation and resolution
of the dispute.
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