California AB 1521 now law: Strongest measure yet to curb ADA abuse

Assembly Bill 1521 was signed into law on Oct. 10, 2015.  It attempts to curb disabled access lawsuit abuse, in particular by “frequent filers.”    Like its predecessors, Senate Bill 1608 in 2008 and Senate Bill 1186 in 2012, AB 1521 does not prevent lawsuits by plaintiff’s suing for theoretical “barriers” to obtain the easy money provided under California’s Unruh Act.  Rather, the new law amendment – actually an amendment of existing law – like its predecessors provides  incremental relief.  There still is no requirement to provide notice and an opportunity to remove an access barrier before suing.  For decades, a notice and cure provision has been the amendment most sought by the business community.  On the other hand, the new law provides some of the most extensive relief yet to defendants and potential defendants (all public accommodations, especially those in buildings built before 1992). 

To begin with, the recognition of abuse is now expressly codified in a new Code Section, California Code of Civil Procedure sec. 425.55, which coins the term “high-frequency litigant” and goes on to state:

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).

While this preamble creates no substantial substantive or procedural obstacle to these lawsuits, it is sure to play a role in judicial decisions on a policy basis.  Never before has the same state law that  created the incentive for high-frequency litigants also condemned their tactics.  It should act as codified “cover” for judges to apply a higher level of scrutiny to these types of plaintiffs.

Such high frequency litigants, which includes litigants who may not themselves qualify but are represented by certain attorneys, are defined as follows:

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 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 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 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, 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 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, or the client in such a case.

The law also adds disclosure and procedural steps, including but limited to:

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 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 “high-frequency litigant” has the same meaning as set forth in subdivision (b) of Section 425.55.

The new law also adds a “supplemental” filing fee for high-frequency litigants of $1,000 per lawsuit.  This is particularly notable because high-frequency litigants commonly file as “paupers” to avoid paying even the basic lawsuit filing fee.  This conduct has been controversial since given the settlement amounts and volume, it would appear that high frequency litigants are involved in a very lucrative endeavor.

High frequency litigants were already filing in federal U.S. District Courts to avoid (evade?) these new state law procedural requirements, and then prosecuting the state law claims on a theory of “supplemental” or “pendant” jurisdiction, which means that the ADA claim is the basis for federal jurisdiction, but that the federal court can decide the state law claims also to avoid a multiplicity of lawsuits.  However, such jurisdiction is discretionary, and this author has already prevailed in motions to have the case dismissed from federal District Court on the basis that the state law claims predominate.  While such a ruling is not conclusive of the lawsuit, it forces the plaintiff to choose between forfeiting his state law monetary claims or filing in state court.

About William Adams

Attorney at Norton, Moore, & Adams, LLP.
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