Since January 2005, 16,530 lawsuits alleging violations of the Americans with Disabilities Act ("ADA") have been filed in federal courts across the country. More of these lawsuits were filed in California than in any other state. Some believe that California is a hotbed of ADA litigation because California law awards damages and attorneys' fees to private plaintiffs for defendant's ADA violations -- treble damages, with minimum statutory damages of $4,000 (prior to the passing of this Senate Bill), and punitive damages. An unknown number of accessibility cases have been filed in California state courts, and countless more claims have been threatened against mostly small business owners.
Past efforts to curtail ADA litigation abuse in California have been marginally successful. Unfortunately, the latest California legislation (SB 1186) may also provide limited relief from abusive ADA litigation. Key provisions of the new law became effective January 1, 2013. California SB 1186, through comprehensive amendments to a number of California laws, including provisions of the California Civil Code (Sections 55.3 et seq.), was intended to provide protection for the owners and operators of public accommodations who are making a good faith effort to comply with the ADA.
An overview of the main provisions of the new California law and our ADA Defense Lawyer observations "from the trenches" regarding the new law follows.
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Overall evaluation of California law changes
SB 1186 did not go as far as some wanted. Many businesses were advocating a restriction on litigation until after a potential defendant had been given a reasonable time to correct alleged violations (which would have provided similar protections to those provided under other legislation (SB 800), which helped to curb the abuse of construction defect litigation against condominium developers). However, SB 1186 did not provide this protection.
Experienced plaintiff's attorneys have already figured out how to work within the boundaries of or circumvent the new law. It does not appear to be slowing the onslaught of lawsuits.
From our perspective, if and when the Court system is equipped to handle the additional burden imposed by SB 1186, the most important benefit of the new law may be the ability of a defendant to petition the state Court to stay proceedings and order an early evaluation conference before meaningful attorney's fees have been incurred. It is harder to come to a reasonable settlement when significant legal fees have been run up by both sides.
Ultimately, the best protection is to secure a CASp certified survey under the supervision of an experienced ADA attorney and to correct any violations under the ADA that are identified in that survey (if and to the extent that such correction is required under applicable law).