Bill Text: CA AB539 | 2023-2024 | Regular Session | Amended
Bill Title: Unruh Civil Rights Act: high-frequency litigants.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2024-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB539 Detail]
Download: California-2023-AB539-Amended.html
|
Amended
IN
Assembly
March 23, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 539
| Introduced by Assembly Member Stephanie Nguyen |
February 08, 2023 |
LEGISLATIVE COUNSEL'S DIGEST
AB 539, as amended, Stephanie Nguyen.
Property rights. Unruh Civil Rights Act: high-frequency litigants.
Existing law, except in complaints that allege physical injury or damage to property, requires a complaint asserting a construction-related accessibility claim, as defined, filed by or on behalf of a high-frequency litigant to state, among other things, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months before filing the complaint and the reason the individual was in the geographic area of the defendant’s business. Existing law defines “high-frequency litigant” to mean a person who utilizes court resources in actions arising from alleged construction-related access violations at such a high level that it is appropriate that additional safeguards apply so as to ensure that the claims are warranted, including, subject
to certain exceptions, 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 construction-related accessibility violation.
For the purpose of defining the term “high-frequency litigant,” this bill would revise and recast the terms “construction-related accessibility claim” and “construction-related accessibility violation” to “accessibility-related violation” and would instead include in the definition of “high-frequency litigant” an attorney who has represented as attorney of record 5 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 an accessibility-related violation.
Existing law makes a person who denies, aids or incites a denial, or
makes any discrimination or distinction contrary to the Gender Tax Repeal Act of 1995 and certain provisions of the Unruh Civil Rights Act liable for each and every offense for the actual damages and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of 3 times the amount of actual damage but in no case less than $4,000, and any attorney’s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in those provisions.
This bill would prohibit a high-frequency litigant from recovering any amount, other than actual damages, pursuant to those provisions that exceeds $1,000 for each offense. The bill would also prohibit a party alleging an accessibility-related violation due to disability pursuant to those provisions from alleging more than one violation per defect and from, through repeated visits, using the previously identified defect as the basis for additional damages.
The bill would also prohibit a plaintiff from alleging an accessibility-related violation unless the plaintiff had a bona fide intent to be a customer of the business at the time that the plaintiff accessed the business.
Existing law establishes property rights and provides that ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others.
This bill would make a nonsubstantive change to those provisions.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 52 of the Civil Code is amended to read:52.
(a) (1) Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense for the actual(2) If a party alleges an accessibility-related violation, as defined in Section 425.55 of the Code of Civil Procedure, due to disability, the plaintiff may allege only a single violation per defect and shall not, through repeated visits, use the previously identified defect as the basis for additional damages.
(3) The plaintiff shall not allege an accessibility-related violation, as defined in Section 425.55 of the Code of Civil Procedure, unless the plaintiff had a bona fide intent to be a customer of the business at the time that the plaintiff accessed the business.
(b) Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following:
(1) An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages.
(2) A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7 in
any action brought by the person denied the right, or by the Attorney General, a district attorney, or a city attorney. An action for that penalty brought pursuant to Section 51.7 shall be commenced within three years of the alleged practice.
(3) Attorney’s fees as may be determined by the court.
(c) Whenever there is reasonable cause to believe that any person or group of persons is engaged in conduct of resistance to the full enjoyment of any of the rights described in this section, and that conduct is of that nature and is intended to deny the full exercise of those rights, the Attorney General, any district attorney or city attorney, or any person aggrieved by the conduct may bring a civil action in the appropriate court by filing with it a complaint. The complaint shall contain the following:
(1) The signature
of the officer, or, in the officer’s absence, the individual acting on behalf of the officer, or the signature of the person aggrieved.
(2) The facts pertaining to the conduct.
(3) A request for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the complainant deems necessary to ensure the full enjoyment of the rights described in this section.
(d) Whenever an action has been commenced in any court seeking relief from the denial of equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States on account of race, color, religion, sex, national origin, or disability, the Attorney General or any district attorney or city attorney for or in the name of
the people of the State of California may intervene in the action upon timely application if the Attorney General or any district attorney or city attorney certifies that the case is of general public importance. In that action, the people of the State of California shall be entitled to the same relief as if it had instituted the action.
(e) Actions brought pursuant to this section are independent of any other actions, remedies, or procedures that may be available to an aggrieved party pursuant to any other law.
(f) Any person claiming to be aggrieved by an alleged unlawful practice in violation of Section 51 or 51.7 may also file a verified complaint with the Civil Rights Department pursuant to Section 12948 of the Government Code.
(g) This section does not 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 does this section 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.
(h) For the purposes of this section, “actual damages” means special and general damages. This subdivision is declaratory of existing law.
(i) Subdivisions (b) to (f), inclusive, shall not be waived by contract except as provided in Section 51.7.
SEC. 2.
Section 425.50 of the Code of Civil Procedure is amended to read:425.50.
(a) An allegation of a construction-related accessibility claim in a complaint, as defined in subdivision (a) of Section 55.52 of the Civil Code, shall state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim, including all of the following:(1) A plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she the individual was deterred, with sufficient information about the location of the alleged barrier to enable a reasonable person to identify the access barrier.
(2) The way in which the barrier denied the individual full and equal use or access, or in which it deterred the individual, on each particular occasion.
(3) The date or dates of each particular occasion on which the claimant encountered the specific access barrier, or on which he or she the claimant was deterred.
(4) (A) Except in complaints that allege physical injury or damage to property, a complaint filed by or on behalf of a high-frequency litigant shall also state all of the following:
(i) Whether the complaint is filed by, or on behalf of, a high-frequency litigant.
(ii) In the case of a high-frequency litigant who is a plaintiff, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to before filing the complaint.
(iii) In the case of a high-frequency litigant who is a plaintiff, the reason the individual was in the geographic area of the defendant’s business.
(iv) In the case of a high-frequency litigant who is a plaintiff, the reason why the individual desired to access the defendant’s business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose.
(B) As used in this section section, “high-frequency litigant” has the same meaning as set forth in subdivision (b) of Section 425.55.
(b) (1) A complaint alleging a construction-related accessibility claim, as those terms are defined in subdivision (a) of Section 55.3 of the Civil Code, shall be verified by the plaintiff. A complaint filed without verification shall be subject to a motion to strike.
(2) A complaint alleging a construction-related accessibility claim filed by, or on behalf of, a high-frequency litigant shall state in the caption “ACTION SUBJECT TO THE SUPPLEMENTAL FEE IN GOVERNMENT CODE SECTION 70616.5.”
(c) A complaint alleging a
construction-related accessibility claim shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. By signing the complaint, the attorney or unrepresented party is certifying that, to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(d) A court may, after notice and a reasonable opportunity to respond, determine whether subdivision (c) has been violated and, if so, impose sanctions as provided in Section 128.7 for violations of subdivision (b) of Section 128.7.
(e) Nothing in this This section shall
does not limit the right of a plaintiff to amend a complaint under Section 472, or with leave of the court under Section 473. However, an amended pleading alleging a construction-related accessibility claim shall be pled as required by subdivision (a).
(f) The determination whether an attorney is a high-frequency litigant shall be made solely on the basis of the verified complaint and any other publicly available documents. Notwithstanding any other law, no party to the proceeding may conduct discovery with respect to whether an attorney is a high-frequency litigant.
(g) This In an effort to prevent forum shopping and the evasion of state law by high-frequency litigants, the
Legislature declares that this section shall become operative on January 1, 2013. is to be viewed as substantive law and urges federal courts governing questions of this state law to apply these standards when relevant litigation appears in their court.
SEC. 3.
Section 425.55 of the Code of Civil Procedure is amended to read:425.55.
(a) The Legislature finds and declares all of the following:(1) Protection of the civil rights of persons with disabilities 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) According to information from the California Commission on Disability Access, more than one-half, or 54 percent, of all construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms. Forty-six percent of all complaints were filed by a total of 14 parties. Therefore, a very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility
claims in the state, from 70 to 300 lawsuits each year. 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 accessibility violation. This practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations as they are entitled to have full and equal access under the state’s Unruh Civil Rights Act (Section 51 of the Civil Code) and the federal Americans with Disability Act of 1990 (Public Law 101-336).
(3) In an effort to circumvent recent legislation to prevent abuse of this section, some high-frequency litigants are pursuing litigation in federal courts and stretch their claims in a manner not originally contemplated by the Legislature in an
attempt to evade state-mandated requirements. Those evasive tactics serve to violate the purpose of this section.
(3)
(4) 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 construction-related access accessibility-related violations 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 construction-related accessibility an accessibility-related violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.
(2) An attorney who has represented as attorney of record 10 five 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 construction-related accessibility an accessibility-related violation, excluding all of the following actions:
(A) An action in which an early evaluation conference was held pursuant to Section 55.54 of the Civil Code.
(B) An action in which judgment was entered in favor of the plaintiff.
(C) An action in which the construction-related accessibility accessibility-related 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, as defined in Section 55.3 of the Civil Code.
(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 construction-related accessibility claim, an accessibility-related violation or the client in such a case.
(c) A high-frequency litigant shall not recover any amount, other than actual damages, pursuant to Section 52 of the Civil Code that exceeds one thousand dollars ($1,000) for each offense.
(d) As used in this section, “accessibility-related violation” means either of the following:
(1) A construction-related accessibility claim, as defined in Section 55.52 of the Civil Code.
(2) A claim brought under Section 51, 54, or 54.1 of the Civil Code that a website violates the Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.).
(e) In an effort to prevent forum shopping and the evasion of state law by high-frequency litigants, the Legislature declares that this section is to be viewed as substantive law and urges federal courts governing questions of this state law to apply these standards when relevant litigation appears in their court.
The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others. In this code, the thing of which there may be ownership is called property.
