CJAC: Civil Justice Association of California

Sep 19, 2012

Viewpoints: Will ADA litigation reform work? It's worth finding out

Sacramento Bee
September 19, 2012

By Kim Stone

Going into 2012, a betting man would not have put great odds on the California Legislature passing a substantive bill this year aimed at reducing Americans with Disabilities Act lawsuits. In the last 10 years, 14 reform bills have been introduced and all failed passage.

Yet, thanks to U.S. Sen. Dianne Feinstein's intervention earlier this year – she sent a letter to Senate President Darrell Steinberg stating that she would act in Congress if the Legislature did not – and the subsequent persistence of Steinberg to push a bill that might actually make a difference, Gov. Jerry Brown has Senate Bill 1186 on his desk right now. It is a bill he should sign into law.

Only time will tell whether SB 1186 will work, but one thing is certain: It is worth finding out.

California has become a hotbed of ADA lawsuits because, unlike other states, we made every ADA violation subject to a $4,000 penalty plus attorney's fees. More than 40 percent of all ADA lawsuits in the nation are filed in California, according to Lawyers Against Lawsuit Abuse, due in large part to the financial incentives our state created for plaintiffs' lawyers.

SB 1186 should help in a number of ways.

It will reduce the financial penalties for property owners who are making good-faith efforts to comply. Statutory damages would be reduced from $4,000 per violation to $1,000 for those who had their properties inspected by a certified access specialist or had construction approved by local building officials as long as fixes to bring the property into full compliance are made within 60 days. Also, specified small businesses would have damages reduced to $2,000 if the fixes were made within 30 days.

The bill should help restrict "stacked claims," when plaintiffs intentionally visit the same property repeatedly knowing they can file multiple claims for the same violation. In one case in Los Angeles, a plaintiff visited a restaurant 27 times over a three-month period where the bathroom mirror was 2 inches high and then filed claims for each and every visit. SB 1186 will require courts to consider the reasonableness of the plaintiff's conduct in these instances.

SB 1186 will also ban "pre-litigation demand letters" in which plaintiffs seek a specific amount of money without actually filing a lawsuit. These demand letters are often sent with the plaintiff offering to "go away" for a mere $7,500 or so, and in many cases the plaintiffs demand only money and do not even ask that the property become compliant. Now, letters sent in conjunction with a lawsuit will have to provide details specified in the bill and a copy must also be sent to the State Bar. This should make plaintiffs more careful about the claims they choose to pursue and encourage them to ensure that their cases are legitimate.

Additionally, the bill should increase the supply of certified access specialists by adding $1 to business license fees to strengthen the state's certified access specialist program.

SB 1186 is certainly a compromise measure, and no stakeholder got everything they wanted. The Civil Justice Association of California, which works to reduce excessive and unwarranted litigation, and many other business groups have supported a number of bills that would give anyone who has been accused of violations a certain number of days to fix their facilities before they can be subject to a lawsuit or penalties. SB 1186 did not go that route.

There are certainly still vulnerabilities that could limit the bill's impact. Financial incentives for unscrupulous plaintiffs' lawyers have been reduced but not eliminated. This could motivate them to target more businesses to make up the difference. Plus, some ADA violations take longer than 30 to 60 days to fix.

The ban on pre-litigation demand letters could result in more lawsuits being filed, and with the drastic reductions in court funding defendants' costs and stress could be prolonged.

Additionally, conflicts between federal and state law that confuse small-business owners and expose them to liability have not yet been resolved.

That all being said, SB 1186 is the most serious attempt at reform to come out of the Legislature since the ADA was signed into law in 1990. There is finally a reason for some real optimism. We urge Brown to seize this opportunity and give SB 1186 a chance to work.

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