How to minimize your liability right after a disabled person sues you

As is oft repeated in this blog and elsewhere, the ADA in combination with California discrimination statutes creates a perfect storm for those wanting to use legal process more than merit to force businesses into disproportionate monetary settlements.  Relief has been slow in coming because both the legislature and disability advocates tend to see the issue in broad generalized terms of less or more access rather than the devil in the details of how the law operates to benefit those who game the system for profit.  Nevertheless, California law has undergone modest amendments in response to repeated press about abusive access lawsuits.  Amendments in 2008 (SB 1608) and 2012 (SB 1186) added provisions to lower the monetary “damages” provided in the California Unruh Act (in actuality, a fine) for access “barriers” (deviations from ADA and building code requirements for accessibility).  As an aside, Unruh Act monetary damages were reserved for intentional and extreme discriminatory actions but has been creatively interpreted by the California Supreme Court as applying to deviations from new building code requirements in buildings constructed before the existence of these requirements.  In any case, the 2008 and 2012 amendments create an opportunity to reduce the fine early in the case, as follows:

1) Any defendant who corrects all violations within 60 days of service of the lawsuit for sites which were approved and constructed between 1/1/2008 and 1/1/2016 or which have been inspected by a Certified Access Specialist (CASp), damage liability will be reduced from $4,000 to $1,0000 “per offense” (each time the defendant encounters or is deterred by an access “barrier” but most courts are hesitant to allow prolific suer to multiply the damage amount).
2) If the violations are corrected within 30 days of service of the lawsuit, for business defendants with fewer than 25 employees and who have gross receipts less than $3.5 mil. (on avg.) over a 3 year period, damages will be reduced from $4,000 to $1,000 per offense.

In reality, such theoretical damage reductions don’t have much direct effect on plaintiff settlement demands.  However, they can be helpful if the case goes to judgment, or earlier on as settlement leverage.  Additionally, when the alleged access violation (“barrier”) is removed, the defendant (via his attorney) can make a motion to have the Court dismiss the plaintiff’s injunctive relief claims, which can make the case more economical to defend.

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About William Adams

Attorney at Norton, Moore, & Adams, LLP.
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